exv10w54



 





 

 






Exhibit 10.54




CREDIT AGREEMENT




Dated as of July 27, 2007




among




ASYST TECHNOLOGIES, INC.

ASYST JAPAN, INC.

and

ASYST SHINKO, INC.,

as Borrowers,




KEYBANK NATIONAL ASSOCIATION,

as Administrative Agent, Swing Line Lender

and L/C Issuer,




and




The Lenders Party Hereto




 






CITIBANK N.A.

as Syndication Agent




SILICON VALLEY BANK

as Documentation Agent




KEYBANC CAPITAL MARKETS,

as Sole Lead Arranger and Sole Book Manager




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	31	 
	1.03 Accounting Terms
	 	 	32	 
	1.04 Rounding
	 	 	32	 
	1.05 Exchange Rates; Currency Equivalents
	 	 	32	 
	1.06 Change of Currency
	 	 	33	 
	1.07 Times of Day
	 	 	33	 
	1.08 Letter of Credit Amounts
	 	 	33	 
	 
	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	33	 
	2.01 The Loans
	 	 	33	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	34
	 
	2.03 Letters of Credit
	 	 	36	 
	2.04 Swing Line Loans
	 	 	45	 
	2.05 Prepayments
	 	 	47
	 
	2.06 Termination or Reduction of Commitments
	 	 	50	 
	2.07 Repayment of Loans
	 	 	50
	 
	2.08 Interest
	 	 	51	 
	2.09 Fees
	 	 	52	 
	2.10 Computation of Interest and Fees
	 	 	52
	 
	2.11 Evidence of Debt
	 	 	52
	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	53	 
	2.13 Sharing of Payments by Lenders
	 	 	55	 
	2.14 Designated Borrowers; Relationship among Borrowers
	 	 	55
	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	57	 
	3.01 Taxes
	 	 	57	 
	3.02 Illegality
	 	 	59	 
	3.03 Inability to Determine Rates
	 	 	59
	 
	3.04 Increased Costs; Reserves on LIBOR Rate Loans
	 	 	59
	 
	3.05 Compensation for Losses
	 	 	61
	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	62	 
	3.07 Survival
	 	 	62
	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	62
	 
	4.01 Conditions of Initial Credit Extension
	 	 	62
	 
	4.02 Conditions to all Credit Extensions
	 	 	65
	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	66
	 
	5.01 Existence, Qualification and Power
	 	 	66
	 
	5.02 Authorization; No Contravention
	 	 	67	 
	5.03 Governmental Authorization; Other Consents
	 	 	67	 
	5.04 Binding Effect
	 	 	67
	 
	5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event
	 	 	67
	 
	5.06 Litigation
	 	 	68
	 
	5.07 Material Contracts
	 	 	69	 
	5.08 Ownership of Property; Liens; Investments
	 	 	69	 
	5.09 Environmental Compliance
	 	 	70
	 
	5.10 Insurance
	 	 	71	 






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	 	 	Page	 
	5.11 Taxes
	 	 	71	 
	5.12 ERISA Compliance
	 	 	71
	 
	5.13 Subsidiaries; Equity Interests; Loan Parties
	 	 	72	 
	5.14 Margin Regulations; Investment Company Act
	 	 	72
	 
	5.15 Disclosure
	 	 	72
	 
	5.16 Compliance with Laws
	 	 	73	 
	5.17 Intellectual Property; Licenses, Etc.
	 	 	73	 
	5.18 Solvency
	 	 	73

	 
	5.19 Casualty, Etc.
	 	 	73

	 
	5.20 Labor Matters
	 	 	73

	 
	5.21 Collateral Documents
	 	 	73

	 
	5.22 Representations as to Foreign Obligors
	 	 	74	 
	5.23
Issuance of Subordinated Debt; Status of Obligations as Senior Indebtedness, etc.
	 	 	74
	 
	 
	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	75
	 
	6.01 Financial Statements
	 	 	75
	 
	6.02 Certificates; Other Information
	 	 	76
	 
	6.03 Notices
	 	 	79	 
	6.04 Payment of Obligations
	 	 	79
	 
	6.05
Preservation of Existence, Etc.
	 	 	80	 
	6.06 Maintenance of Properties
	 	 	80	 
	6.07 Maintenance of Insurance
	 	 	80
	 
	6.08 Compliance with Laws
	 	 	80
	 
	6.09 Books and Records
	 	 	80
	 
	6.10 Inspection Rights
	 	 	80
	 
	6.11 Use of Proceeds
	 	 	81	 
	6.12 [Reserved]
	 	 	81	 
	6.13 Covenant to Guarantee Obligations and Give Security
	 	 	81	 
	6.14 Compliance with Environmental Laws
	 	 	85
	 
	6.15 Preparation of Environmental Reports
	 	 	85
	 
	6.16 Further Assurances
	 	 	86	 
	6.17 Compliance with Terms of Leaseholds
	 	 	86
	 
	6.18 Foreign Government Scheme or Arrangement: Foreign Plan
	 	 	87	 
	6.19 Lien Searches
	 	 	87
	 
	6.20 Material Contracts
	 	 	87
	 
	6.21 Designation as Senior Debt
	 	 	87
	 
	6.22
Security Interests in Accounts, Etc.
	 	 	87
	 
	6.23 Approvals and Authorizations
	 	 	88	 
	6.24 Post Closing Covenants
	 	 	88	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	89
	 
	7.01 Liens
	 	 	89
	 
	7.02 Indebtedness
	 	 	91	 
	7.03 Investments
	 	 	92
	 
	7.04 Fundamental Changes
	 	 	94
	 
	7.05 Dispositions
	 	 	95
	 
	7.06 Restricted Payments
	 	 	96	 
	7.07 Change in Nature of Business
	 	 	96
	 
	7.08 Transactions with Affiliates
	 	 	96
	 
	7.09 Burdensome Agreements
	 	 	97	 
	7.10 Use of Proceeds
	 	 	97	 
	7.11 Financial Covenants
	 	 	97	 
	7.12 Capital Expenditures
	 	 	97
	 
	7.13 Amendments of Organization Documents
	 	 	97

	 






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	 	 	Page	 
	7.14 Accounting Changes
	 	 	97
	 
	7.15 Prepayments, Etc. of Indebtedness
	 	 	97
	 
	7.16 Amendment, Etc. of Debt Documents
	 	 	97
	 
	7.17 Designation of Senior Debt
	 	 	98	 
	7.18 Lease Obligations
	 	 	98	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	 	 	98
	 
	8.01 Events of Default
	 	 	98
	 
	8.02 Remedies Upon Event of Default
	 	 	101	 
	8.03 Application of Funds
	 	 	101
	 
	 
	 	 	 	 
	ARTICLE IX ADMINISTRATIVE AGENT
	 	 	102
	 
	9.01 Appointment and Authority
	 	 	102
	 
	9.02 Rights as a Lender
	 	 	103
	 
	9.03 Exculpatory Provisions
	 	 	103
	 
	9.04 Reliance by Administrative Agent
	 	 	104	 
	9.05 Delegation of Duties
	 	 	104
	 
	9.06 Resignation of Administrative Agent
	 	 	104
	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	105
	 
	9.08 No Other Duties, Etc.
	 	 	105
	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	105
	 
	9.10 Collateral and Guaranty Matters
	 	 	106
	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	107	 
	10.01 Amendments, Etc.
	 	 	107	 
	10.02 Notices; Effectiveness; Electronic Communications
	 	 	108
	 
	10.03 No Waiver; Cumulative Remedies
	 	 	110	 
	10.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses
	 	 	110	 
	10.05 Payments Set Aside
	 	 	111
	 
	10.06 Successors and Assigns
	 	 	112	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	116
	 
	10.08 Right of Setoff
	 	 	117	 
	10.09 Interest Rate Limitation
	 	 	117
	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	117
	 
	10.11 Survival of Representations and Warranties
	 	 	118
	 
	10.12 Severability
	 	 	118	 
	10.13 Replacement of Lenders
	 	 	118
	 
	10.14
Governing Law; Jurisdiction; Etc.
	 	 	119	 
	10.15 Waiver of Jury Trial
	 	 	120	 
	10.16 California Judicial Reference
	 	 	120
	 
	10.17 No Advisory or Fiduciary Responsibility
	 	 	120
	 
	10.18 USA PATRIOT Act Notice
	 	 	121	 
	10.19 Time of the Essence
	 	 	121
	 
	10.20 Judgment Currency
	 	 	121
	 
	10.21 Appointment and Authority of the Company
	 	 	121
	 
	10.22 ENTIRE AGREEMENT
	 	 	121
	 
	10.23 Lenders’ Joint and Several Rights with Respect to Taiwanese Collateral
	 	 	122	 
	10.24 Collection Allocation Mechanism
	 	 	122	 






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SCHEDULES




	 	 	 
	2.01

	 	Commitments and Applicable Percentages
	 
	 	 
	5.03

	 	Certain Authorizations
	 
	 	 
	5.05(b)

	 	Existing Indebtedness
	 
	 	 
	5.05(d)

	 	Internal Control Events
	 
	 	 
	5.06

	 	Litigation
	 
	 	 
	5.07

	 	Material Contracts
	 
	 	 
	5.08(b)

	 	Existing Liens
	 
	 	 
	5.08(c)

	 	Owned Real Property
	 
	 	 
	5.08(d)(i)

	 	Leased Real Property (Lessee)
	 
	 	 
	5.08(d)(ii)

	 	Leased Real Property (Lessor)
	 
	 	 
	5.08(e)

	 	Existing Investments
	 
	 	 
	5.08(f)

	 	Material Personal Property
	 
	 	 
	5.08(g)

	 	Accounts
	 
	 	 
	5.12(d)(ii)

	 	Foreign Plans
	 
	 	 
	5.13

	 	Subsidiaries and Other Equity Investments; Loan Parties
	 
	 	 
	5.17

	 	Intellectual Property Matters
	 
	 	 
	5.21

	 	Perfection Filings
	 
	 	 
	5.22

	 	Taxes, Etc.
	 
	 	 
	6.02(f)

	 	Certain Other Information
	 
	 	 
	6.13

	 	Guarantors
	 
	 	 
	7.02

	 	Continuing Indebtedness
	 
	 	 
	10.02

	 	Administrative Agent’s Office, Certain Addresses for Notices
	 
	 	 
	10.06

	 	Processing and Recordation Fees






iv









 






EXHIBITS




	 	 	 
	Form of	 	 
	A

	 	Committed Loan Notice
	 
	 	 
	B

	 	Swing Line Loan Notice
	 
	 	 
	C-1

	 	Term Note
	 
	 	 
	C-2

	 	Revolving Credit Note
	 
	 	 
	D

	 	Compliance Certificate
	 
	 	 
	E

	 	Assignment and Assumption
	 
	 	 
	F-1

	 	Company Guaranty
	 
	 	 
	F-2

	 	US Subsidiary Guaranty
	 
	 	 
	F-3

	 	Japanese Guaranty
	 
	 	 
	F-4

	 	Taiwanese Subsidiary Guaranty
	 
	 	 
	F-5

	 	Korean Subsidiary Guaranty
	 
	 	 
	F-6

	 	ASI Subsidiary Guaranty
	 
	 	 
	G-1

	 	US Security Agreement
	 
	 	 
	G-2

	 	Japanese Security Agreements
	 

	 	G-2A AJI Japanese Security Agreement
	 

	 	G-2B ASI Japanese Security Agreement
	 

	 	G-2C ATI Japanese Security Agreement
	 
	 	 
	G-3

	 	Korean Security Agreements
	 
	 	 
	G-4

	 	Taiwanese Security Agreements
	 
	 	 
	H

	 	Designated Borrower Request and Assumption Agreement
	 
	 	 
	I

	 	Designated Borrower Notice
	 
	 	 
	J

	 	Closing Date Certificate
	 
	 	 
	K

	 	Solvency Certificate






v









 






CREDIT AGREEMENT




     This CREDIT AGREEMENT is entered into as of July 27, 2007, among ASYST TECHNOLOGIES, INC., a
California corporation (the “Company” or “ATI”), ASYST JAPAN, INC., a Japanese
corporation (“AJI”), ASYST SHINKO, INC., a Japanese corporation (“ASI”), and certain other
Subsidiaries of the Company from time to time party hereto pursuant to Section 2.14 (each a
“Designated Borrower” and, together with the Company, ASI and AJI, the
“Borrowers”), each financial institution from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and KEYBANK NATIONAL ASSOCIATION, as
Administrative Agent, Swing Line Lender and L/C Issuer.



     The Company has requested that the Lenders provide a term loan facility and a revolving credit
facility for general corporate purposes of the Company and its Subsidiaries, and the Lenders are
willing to do so on the terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the
meanings set forth below:



     “Accounts” means, collectively, “deposit accounts”, “securities accounts” and
“commodities accounts” as such terms are defined in the UCC.



     “Acquisition Agreement” means the Share Purchase Agreement, dated as of June 22, 2006,
among the Company, AJI and Shinko Electric, Co. Ltd. (“Shinko”), pursuant to which AJI has
acquired 44.1% of the outstanding Equity Interests in ASI not previously owned by AJI and which
includes provisions for the acquisition of an additional 4.9% of the Equity Interests in ASI.



     “Additional Lender” is defined in Section 2.01(c).



     “Administrative Agent” means KeyBank National Association in its capacity as
administrative agent under any of the Loan Documents, or any successor administrative agent or any
designee of the foregoing.



     “Administrative Agent’s Office” means, with respect to any currency, the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with
respect to such currency, or such other address or account with respect to such currency as the
Administrative Agent may from time to time notify to the Company and the Lenders.



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



     “Affiliate” means, with respect to any 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.



     “Aggregate Commitments” means the Commitments of all the Lenders.



1









 





     “Agreement” means this Credit Agreement.



     “AJI” is defined in the introductory paragraph hereto.



     “AJI Japanese Security Agreement” means a pledge and security agreement, in
substantially the form of Exhibit G-2A.



     “Applicable Foreign Obligor Documents” has the meaning specified in Section
5.22.



     “Applicable Percentage” means (a) in respect of the Term Loan Facility, with respect
to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term
Loan Facility represented by (i) on or prior to the Closing Date, such Term Lender’s Term Loan
Commitment at such time and (ii) thereafter, the principal amount of such Term Lender’s Term Loans
at such time and (b) in respect of the Revolving Credit Facility, with respect to any Revolving
Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving
Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at such
time. If the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, or if the Revolving Credit Commitments have expired, then the Applicable
Percentage of each Revolving Credit Lender in respect of the Revolving Credit Facility shall be
determined based on the Applicable Percentage of such Revolving Credit Lender in respect of the
Revolving Credit Facility most recently in effect, giving effect to any subsequent assignments. The
initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the
name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means (a) from the Closing Date to the date on which the
Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(b) for the
fiscal quarter ending June 30, 2007, (i) with respect to the Revolving Credit Facility, 1.50% per
annum for Base Rate Loans and 2.50% per annum for LIBOR Rate Loans and (ii) with respect to the
Term Loan Facility, 1.75% per annum for Base Rate Loans and 2.75% per annum for LIBOR Rate Loans
and (b) thereafter, the applicable percentage per annum set forth below determined by reference to
the Consolidated Total Leverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Revolving Credit Facility	 	Term Loan Facility
	 	 	Consolidated	 	 	 	 	 	LIBOR Rate	 	 	 	 	 	 
	 	 	Total	 	 	 	 	 	Loans &	 	 	 	 	 	 
	Pricing	 	Leverage	 	Commitment	 	Letters of	 	Base Rate	 	LIBOR	 	Base Rate
	Level	 	Ratio	 	Fee	 	Credit	 	Loans	 	Rate Loans	 	Loans
	1
	 	less than or equal to 2.0:1	 	 	0.375	%	 	 	2.00	%	 	 	1.00	%	 	 	2.50	%	 	 	1.50	%
	2
	 	greater than 2.0:1 but less than or equal to 2.5:1	 	 	0.375	%	 	 	2.25	%	 	 	1.25	%	 	 	2.75	%	 	 	1.75	%
	3
	 	greater than 2.5:1 but less than or equal to 3.0:1	 	 	0.50	%	 	 	2.50	%	 	 	1.50	%	 	 	2.75	%	 	 	1.75	%
	4
	 	greater than 3.0:1	 	 	0.50	%	 	 	2.75	%	 	 	1.75	%	 	 	2.75	%	 	 	1.75	%






2









 





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Total
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(b) that is the basis for such
change; provided that if a Compliance Certificate is not delivered when due in accordance
with such Section, then Pricing Level 4 shall apply as of the first Business Day after the date on
which such Compliance Certificate was required to have been delivered until the first Business Day
immediately following the date on which such Compliance Certificate is delivered.




     “Applicable Revolving Credit Percentage” means, with respect to any Revolving Credit
Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the
Revolving Credit Facility at such time.



     “Applicable Time” means, with respect to any borrowings and payments in Yen, the local
time in Tokyo Japan necessary for timely settlement on the relevant date in accordance with normal
banking procedures in the place of payment.



     “Applicant Borrower” has the meaning specified in Section 2.14.



     “Appropriate Lender” means, at any time, (a) with respect to the Term Loan Facility or
the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or
holds a Term Loan or a Revolving Credit Loan, respectively, at such time, (b) with respect to the
Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued
pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swing
Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant
to Section 2.04(a), the Revolving Credit Lenders.



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arranger” means KeyBanc Capital Markets in its capacity as sole lead arranger and
sole book manager.



     “ASI” is defined in the introductory paragraph hereto.



     “ASI Japanese Security Agreement” means a pledge and security agreement, in
substantially the form of Exhibit G-2B.



     “ASI Subsidiary Guaranty” means any Guaranty made by any Subsidiary of ASI in favor of
the Administrative Agent and the Lenders, in the form of Exhibit F-7.



     “ASAI” means Asyst Shinko America, Inc., a California corporation.



     “Asset Sale” means the sale by Company or any of its Subsidiaries to any Person other
than Company or any of its Subsidiaries of (i) any of the stock of any of Company’s Subsidiaries,
(ii) substantially all of the assets of any division or line of business of Company or any of its
Subsidiaries, or (iii) any other assets (whether tangible or intangible) of Company or any of its
Subsidiaries, other than (a) inventory, products or services sold in the ordinary course
of business (b) Cash Equivalents (c) sales, assignments, transfers or dispositions of accounts
in the ordinary course of business for purposes of collection and (d) any such other assets to the



3









 







extent that the aggregate value of such assets sold in any Fiscal Year is equal to $5,000,000 or
less.



     “Asset Trigger Event” means, with respect to any Subsidiary, at any time the aggregate
book value of the assets of such Subsidiary located in one country, together with the aggregate
book value of the assets located in such country of the Company or each other Subsidiary, equals or
exceeds $1,000,000.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit E or any other form approved by the Administrative Agent.



     “AST” means Asyst Shinko Taiwan, Inc., a company organized under the laws of Taiwan.



     “ATI Japanese Security Agreement” means a pledge and security agreement, in
substantially the form of Exhibit G-2C.



     “ATT” means Asyst Technologies, (Taiwan) Ltd., a company organized under the laws of
Taiwan.



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease or similar payments or outstanding
advances under the relevant lease or other applicable agreement or instrument that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or
other agreement or instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt
of such Person.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended March 31, 2006, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the
Company and its Subsidiaries, including the notes thereto.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date for the Revolving Credit Facility, (b) the date of termination of
the Revolving Credit Commitments pursuant to Section 2.06, and (c) the date of termination
of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and of the
obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by KeyBank as its “prime rate.” The “prime rate” is a rate set
by KeyBank based upon various factors including KeyBank’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in such rate
announced by KeyBank shall take effect at the opening of business on the day specified in the
public announcement of such change.



4









 





     “Base Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest
based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.



     “Borrowers” has the meaning specified in the introductory paragraph hereto.



     “Borrower Account” has the meaning specified in Section 2.05(d).



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term Loan
Borrowing, as the context may require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is
located and:



     (a) if such day relates to any interest rate settings as to a LIBOR Rate Loan denominated in
Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such
LIBOR Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in
respect of any such LIBOR Rate Loan, means any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market;



     (b) if such day relates to any interest rate settings as to a LIBOR Rate Loan denominated in a
currency other than Dollars, means any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the London or other applicable offshore interbank
market for such currency; and



     (c) if such day relates to any fundings, disbursements, settlements and payments in a currency
other than Dollars in respect of a LIBOR Rate Loan denominated in a currency other than Dollars, or
any other dealings in any currency other than Dollars to be carried out pursuant to this Agreement
in respect of any such LIBOR Rate Loan (other than any interest rate settings), means any such day
on which banks are open for foreign exchange business in the principal financial center of the
country of such currency.



     “CAM Exchange” means the exchange of Lenders’ interests provided for in Section 10.24.



     “CAM Exchange Date” means the date on which (a) any Event of Default referred to in
Section 8.01(f) or (g) shall occur in respect of any Borrower or (b) an
acceleration of the maturity of any of the Loans pursuant to Section 8.02 shall occur.



     “CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of
which (a) the numerator is the aggregate Dollar Equivalent (determined on the basis of the Spot
Rate prevailing on the CAM Exchange Date) of the Specified Obligations owed to such Lender and (b)
the denominator is the aggregate Dollar Equivalent (as so determined) of the Specified Obligations
owed to all Lenders and the aggregate undrawn amount of outstanding Letters of Credit as of the
close of business on the Business Day immediately prior to such CAM Exchange Date.



     “Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged to current operations).



5









 





     “Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.



     “Cash Collateral Account” means a blocked, non-interest bearing deposit account of one
or more of the Loan Parties at KeyBank in the name of the Administrative Agent and under the sole
dominion and control of the Administrative Agent, and otherwise established in a manner reasonably
satisfactory to the Administrative Agent.



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Cash Equivalents” means any of the following types of Investments, to the extent
owned by the Company or any of its Subsidiaries free and clear of all Liens (other than Liens
created under the Collateral Documents):



     (a) readily marketable obligations issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof having maturities of not more
than 360 days from the date of acquisition thereof; provided that the full faith and credit of the
United States of America is pledged in support thereof;



     (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any
commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of
America, any state thereof or the District of Columbia or is the principal banking subsidiary of a
bank holding company organized under the laws of the United States of America, any state thereof or
the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent
of which issues) commercial paper rated as described in clause (c) of this definition and
(iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of
not more than 90 days from the date of acquisition thereof;



     (c) commercial paper issued by any Person organized under the laws of any state of the United
States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at
least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than
180 days from the date of acquisition thereof; and



     (d) Investments, classified in accordance with GAAP as current assets of the Company or any of
its Subsidiaries, in money market investment programs registered under the Investment Company Act
of 1940, which are administered by financial institutions that have the highest rating obtainable
from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the
character, quality and maturity described in clauses (a), (b) and (c) of
this definition.



     “Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.



     “Cash Management Bank” means any Person that, at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Cash Management Agreement.



     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act.



     “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the US Environmental Protection Agency.



6









 





     “CFC” means a Person that is a controlled foreign corporation under Section 957 of the
Code.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means an event or series of events by which:



     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to
have “beneficial ownership” of all securities that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right, an
“option right”)), directly or indirectly, of 25% or more of the equity securities of the Company
entitled to vote for members of the board of directors or equivalent governing body of the Company
on a fully-diluted basis (and taking into account all such securities that such “person” or “group”
has the right to acquire pursuant to any option right); or



     (b) during any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Company cease to be composed of individuals (i)
who were members of that board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at least a majority of that
board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii),
any individual whose initial nomination for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group other than a
solicitation for the election of one or more directors by or on behalf of the board of directors);
or



     (c) any Person or two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof,
will result in its or their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Company, or control over the equity
securities of the Company entitled to vote for members of the board of directors or equivalent
governing body of the Company on a fully-diluted basis (and taking into account all such securities
that such Person or Persons have the right to acquire pursuant to any option right) representing
25% or more of the combined voting power of such securities; or



     (d) a “change of control” or any comparable term under, and as defined in, any Sub Debt
Documents shall have occurred.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



7









 





     “Closing Date Certificate” means the closing date certificate executed and delivered
by a Responsible Officer of each Loan Party substantially in the form of Exhibit J.



     “Code” means the Internal Revenue Code of 1986.



     “Collateral” means, collectively, all of the US Collateral, the Japanese Collateral,
the Korean Collateral, the Taiwanese Collateral and the Other Foreign Collateral.



     “Collateral Documents” means, collectively, the US Collateral Documents, the Japanese
Collateral Documents, the Korean Collateral Documents, the Taiwanese Collateral Documents and the
Other Foreign Collateral Documents.



     “Commitment” means a Term Loan Commitment or a Revolving Credit Commitment, as the
context may require.



     “Committed Loan Notice” means a notice of (a) a Term Loan Borrowing, (b) a Revolving
Credit Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a continuation of
LIBOR Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially
in the form of Exhibit A.



     “Company” has the meaning specified in the introductory paragraph hereto.



     “Company Guaranty” means the Company Guaranty made by the Company in favor of the
Administrative Agent and the Lenders, substantially in the form of Exhibit F-1.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
D.



     “Consolidated EBITDA” means, at any date of determination, an amount equal to
Consolidated Net Income of the Company and its Subsidiaries on a consolidated basis for the most
recently completed Measurement Period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the provision for
Federal, state, local and foreign income taxes payable, (iii) depreciation and amortization expense
(including impairment of goodwill as defined under FAS 142), (iv) non-cash stock based compensation
charges, (v) any non-cash expense determined pursuant to FAS 123R, (vi) any non-cash charges
resulting from the write-off of capitalized expenses relating to the issuance of the Existing
Credit Agreement and the Subordinated Notes carried on the balance sheet and (vii) any other
non-cash, non-recurring charges, and minus (b) to the extent included in calculating such
Consolidated Net Income, Federal, state, local and foreign income tax credits (in each case of or
by the Company and its Subsidiaries for such Measurement Period).



     “Consolidated Fixed Charge Coverage Ratio” means, at any date of determination, the
ratio of (a) Consolidated EBITDA to (b) the sum of (i) Capital Expenditures plus (ii) Consolidated
Interest Charges paid or payable in cash plus (iii) cash income taxes paid (less the amount of any
cash income tax refunds actually received) in each case, of or by the Company and its Subsidiaries
for the most recently completed Measurement Period.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Company and its Subsidiaries on a consolidated basis, the sum of all Funded Indebtedness.



     “Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses in connection with
borrowed money (including capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) the
portion of rent expense under Capitalized Leases that is treated as interest in accordance with



8









 







GAAP and (c) the portion of rent expense under Synthetic Lease Obligations that would be treated as
interest in accordance with GAAP if the Synthetic Lease Obligation were treated as a capital lease
under GAAP, in each case, of or by the Company and its Subsidiaries on a consolidated basis for the
most recently completed Measurement Period.



     “Consolidated Net Income” means, at any date of determination, the net income (or
loss) of the Company and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period; provided that Consolidated Net Income shall exclude (a) extraordinary
and non-recurring gains (or losses) for such Measurement Period, (b) the net income of any
Subsidiary during such Measurement Period to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary of such income is not permitted by operation
of the terms of its Organization Documents or any agreement, instrument or Law applicable to such
Subsidiary during such Measurement Period, except that the Company’s equity in any net loss of any
such Subsidiary for such Measurement Period shall be included in determining Consolidated Net
Income, (c) net income (or net loss) of the Company and its Subsidiaries combined on a “pooling of
interests” basis attributable to any period prior to the date of such combination, and (d) gains
(and losses) realized by Company and its Subsidiaries upon the sale or other disposition of
property or assets that are not sold or otherwise disposed of in the ordinary course of business
(including, without limitation, pursuant to sale and leaseback transactions), or pursuant to the
sale of any Equity Interests of Company or any of its Subsidiaries.



     “Consolidated Senior Indebtedness” means the Obligations and any and all other
Consolidated Funded Indebtedness other than (i) the Subordinated Notes and (ii) obligations of any
Japanese Loan Party under unsecured local credit lines existing as of the Closing Date which are,
in each case, subordinated to the Obligations, not guaranteed by the Company or any other
Subsidiary of the Company, and otherwise permitted under this Agreement.



     “Consolidated Senior Leverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Senior Indebtedness as of such date to (b) Consolidated EBITDA of the Company
and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period.



     “Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA of the Company
and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period.



     “Continuing Debt” has the meaning specified in Section 7.02(d).



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



     “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.



     “Control Agreement” means an agreement in form and substance satisfactory to the
Administrative Agent which provides for the Administrative Agent to have “control” (as defined
in Section 8-106 of the UCC, as such term relates to investment property (other than
certificated securities or commodity contracts), or as used in Section 9-106 of the UCC, as such
term relates



9









 







to commodity contracts, or as used in Section 9-104(a) of the UCC, as such term
relates to deposit accounts).



     “Copyright Security Agreement” means any Copyright Security Agreement executed and
delivered by any Obligor, in substantially the form of Exhibit C to the US Security Agreement.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States (and any similar
provisions of Japanese Laws, Korean Laws, Taiwanese Laws and Laws of any jurisdiction where Other
Foreign Loan Parties are located), and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States, Japan or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the highest Applicable
Rate applicable to Base Rate Loans under the Revolving Credit Facility plus (iii) 2% per
annum; provided that with respect to a LIBOR Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including the highest Applicable Rate) otherwise
applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees,
a rate equal to the highest Applicable Rate plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Term Loans, Revolving Credit Loans, participations in L/C Obligations or participations in Swing
Line Loans required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding.



     “Designated Borrower” has the meaning specified in the introductory paragraph hereto.



     “Designated Borrower Notice” has the meaning specified in Section 2.14.



     “Designated Borrower Request and Assumption Agreement” has the meaning specified in
Section 2.14.



     “Disclosed Litigation” has the meaning set forth in Section 5.06.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person (or the
granting of any option or other right to do any of the foregoing), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith.



     “Dollar” and “$” mean lawful money of the United States.



     “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in Yen, the equivalent



10









 







amount
thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be,
at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation
Date) for the purchase of Dollars with Yen.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b) (iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b (iii)).



     “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 governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Company, any other Loan Party or any of their respective 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 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.



     “Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Company within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings
by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a



11









 







trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Company or any ERISA Affiliate.



     “Escrow Agreement” means that certain Escrow Agreement dated as of July 25, 2007
between ATI and U.S. Bank National Association, as Escrow Bank.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Accounts” means, collectively, Accounts of the Company and its Subsidiaries
(other than Accounts held at KeyBank or any other Secured Party), the average monthly balance of
which at any time, either individually or in the aggregate with all such other Accounts, does not
exceed $1,000,000.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) 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 or any similar
tax imposed by any other jurisdiction in which such Borrower is located and (c) except as provided
in the following sentence, in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Company under Section 10.13), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability
(other than as a result of a Change in Law) to comply with Section 3.01(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new Lending Office (or assignment), to receive additional amounts from the applicable Borrower
with respect to such withholding tax pursuant to Section 3.01(a). Notwithstanding anything
to the contrary contained in this definition, “Excluded Taxes” shall not include any withholding
tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any Lender
hereunder or under any other Loan Document, provided that such Lender shall have complied with the
last paragraph of Section 3.01(e).



     “Existing Credit Agreement” means the Credit Agreement, dated as of June 22, 2006, by
and among ATI, AJI, ASI, the lenders party thereto, and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer.



     “Existing Indebtedness” has the meaning specified in Section 5.05(b).



     “Facility” means the Revolving Credit Facility.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to KeyBank on such day on such transactions as determined by
the Administrative Agent.



12









 





     “Fee Letter” means the letter agreement, dated May 23, 2007, among the Company, the
Administrative Agent and the Arranger.



     “Filing System” has the meaning specified in Section 6.16.



     “Forbearance Letter” means the Forbearance Letter, dated as of the Closing Date,
between the Company and the Administrative Agent, on behalf of the Lenders, a copy of which shall
have been provided to the Lenders.



     “Foreign Government Scheme or Arrangement” has the meaning specified in Section
5.12(d).



     “Foreign Lender” means, with respect to any Borrower, any Lender that is organized
under the laws of a jurisdiction other than that in which such Borrower is resident for tax
purposes. For purposes of this definition, the United States, each State thereof and the District
of Columbia shall be deemed to constitute a single jurisdiction.



     “Foreign Obligor” means a Loan Party other than a US Loan Party.



     “Foreign Plan” has the meaning specified in Section 5.12(d).



     “Foreign Plan Event” means (a) termination in whole of a Foreign Plan by the Company
or any of its Subsidiaries; (b) commencement of proceedings by the applicable pension regulator to
terminate in whole a Foreign Plan; (c) withdrawal by the Company or any of its Subsidiaries from a
“multi-employer pension plan,” as defined under any applicable Foreign Government Scheme or
Arrangement; or (d) an event which constitutes grounds under any applicable Foreign Government
Scheme or Arrangement for the applicable pension regulator to remove the administrator of a Foreign
Plan.



     “Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States, a State thereof or the District of Columbia.



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



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.



     “Funded Indebtedness” means, with respect to any Person, (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers’ acceptances (to the extent drawn
upon and not repaid or cash collateralized by such Person), bank guaranties, surety bonds and
similar instruments, (d) all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business), (e) all
Attributable Indebtedness, (f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons
other than the Company or any Subsidiary, and (g) all Indebtedness of the types referred to in
clauses (a) through (f) above of any partnership or joint venture (other than a
joint venture
that is itself a corporation or limited liability company) in which such Person is a general
partner or joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.



13









 





     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Governmental Authority” means the government of the United States, Japan or any other
nation, or of 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 (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Granting Lender” has the meaning specified in Section 10.06(h).



     “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable amount of the related primary
obligation, 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
guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.



     “Guaranties” means the Company Guaranty, the US Subsidiary Guaranty, the Japanese
Guaranty, the Taiwanese Subsidiary Guaranty; the Korean Subsidiary Guaranty, the ASI Subsidiary
Guaranty and each Other Foreign Subsidiary Guaranty.



     “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.



     “Hedge Bank” means any Person that, at the time it enters into a Secured Hedge
Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Secured
Hedge Agreement.



     “Honor Date” has the meaning specified in Section 2.03(c).



14









 





     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all obligations, direct, contingent or otherwise, of such Person relative to the
face amount of all letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments;




     (c) net obligations of such Person under any Swap Contract;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services to the extent such deferral was originally greater than 180 days (other than trade
accounts payable in the ordinary course of business and not past due for more than 90 days
(or 150 days in the case of trade accounts payable of any Japanese Loan Party) after the
date on which such trade account was created);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (f) all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease
Obligations of such Person and all Synthetic Debt of such Person (excluding Synthetic Lease
Obligations to the extent they are secured by cash collateral or a letter of credit);




     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person or any
warrant, right or option to acquire such Equity Interest, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and




     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any LIBOR Rate Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made; provided that if any Interest Period for a LIBOR Rate Loan exceeds
three months, the respective dates that fall every three months after the beginning of such
Interest



15









 







Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a
Swing Line Loan), each Quarterly Payment Date and the Maturity Date of the Facility under which
such Loan was made (with Swing Line Loans being deemed made under the Revolving Credit Facility for
purposes of this definition).



     “Interest Period” means, as to each LIBOR Rate Loan, the period commencing on the date
such LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate Loan and ending on
the date one, two, three or (if available to all relevant Lenders) six months thereafter, as
selected by the Company in its Committed Loan Notice (except that until such time as the Arranger
determines that syndication of the credit facilities hereunder has been successfully completed, the
Company may not select an Interest Period of longer than one month); provided that:




     (a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (b) any Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the calendar month at the end
of such Interest Period; and




     (c) no Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.



     “Internal Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, the Company’s internal controls over
financial reporting, in each case as described in the Securities Laws.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or interest in, another Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of assets of another
Person that constitute a business unit or all or a substantial part of the business of, such
Person. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.



     “IP Rights” has the meaning specified in Section 5.18.



     “IP Security Agreements” means Trademark Security Agreements, Copyright Security
Agreements, Patent Security Agreements and each other security or pledge agreement under which
intellectual property of the Loan Parties is pledged for the benefit of the Secured Parties.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C
Issuer



16









 







and
the Company (or any Subsidiary) or in favor the L/C Issuer and relating to such Letter of Credit.



     “Japanese Borrowers” means, collectively, AJI and ASI.



     “Japanese Collateral” means all of the “Collateral” and “Mortgaged Property” (or
similar terms) referred to in the Japanese Collateral Documents and all of the other property that
is or is intended under the terms of the Japanese Collateral Documents to be subject to Liens in
favor of the Secured Parties (or any of them).



     “Japanese Collateral Documents” means, collectively, the Japanese Security Agreements,
the Japanese Mortgages, each of the mortgages, collateral assignments, Japanese Security Agreement
supplements, security agreements, pledge agreements or other similar agreements executed by any
Japanese Borrower or any Japanese Subsidiary Guarantor and delivered in accordance with Section
6.13, and each of the other agreements, instruments or documents executed and/or delivered by
any Japanese Subsidiary Guarantor that creates or purports to create a Lien for the benefit of the
Secured Parties.



     “Japanese Guaranty” means each Guaranty made by the Japanese Borrowers and the
Japanese Subsidiary Guarantors in favor of the Administrative Agent and the Lenders, substantially
in the form of Exhibit F-3.



     “Japanese Loan Party” means any Loan Party organized under the Laws of Japan or any
political subdivision or jurisdiction thereof.



     “Japanese Mortgages” means each Mortgage delivered by a Japanese Loan Party.



     “Japanese Security Agreement” means each of the ATI Japanese Security Agreement, the
AJI Japanese Security Agreement, the ASI Japanese Security Agreement and each other pledge and
security agreement and pledge and security agreement supplement delivered by a Japanese Borrower or
a Japanese Subsidiary Guarantor in accordance with Section 6.13.



     “Japanese Subsidiary” means any Subsidiary organized under the Laws of Japan or any
political subdivision or jurisdiction thereof.



     “Japanese Subsidiary Guarantors” means, collectively, the Japanese Subsidiaries
(including the Japanese Borrowers) listed on Schedule 6.13 and each other Japanese
Subsidiary that executes and delivers a guaranty or guaranty supplement in accordance with
Section 6.13.



     “KeyBank” means KeyBank National Association and its successors.



     “Korean Collateral” means all of the “Collateral” and “Mortgaged Property” (or similar
terms) referred to in the Korean Collateral Documents and all of the other property that is or is
intended under the terms of the Korean Collateral Documents to be subject to Liens in favor of the
Secured Parties (or any of them).



     “Korean Collateral Documents” means, collectively, the Korean Security Agreements, the
Korean Mortgages, each of the mortgages, collateral assignments, Korean Security Agreement
supplements, security agreements, pledge agreements or other similar agreements executed by any
Korean Loan Party and delivered to the Administrative Agent in accordance with Section
6.13, and each of the other agreements, instruments or documents executed by any
Korean Loan Party that creates or purports to create a Lien in favor of the Administrative
Agent for the benefit of the Secured Parties.



17









 





     “Korean Loan Party” means any Loan Party that is organized under the Laws of Korea or
any political subdivision or jurisdiction thereof.



     “Korean Mortgages” means each Mortgage delivered by a Korean Loan Party.



     “Korean Security Agreements” means each pledge and security agreement, in
substantially the form of Exhibit G-3, and each other pledge and security agreement and
pledge and security agreement supplement delivered by a Korean Loan Party in accordance with
Section 6.13.



     “Korean Subsidiary” means any Subsidiary that is organized under the Laws of Korea or
any political subdivision or jurisdiction thereof.



     “Korean Subsidiary Guarantors” means, collectively, the Korean Subsidiaries listed on
Schedule 6.13 and each other Korean Subsidiary that executes and delivers a guaranty or
guaranty supplement in accordance with Section 6.13.



     “Korean Subsidiary Guaranty” means each Guaranty made by the Korean Subsidiary
Guarantors in favor of the Administrative Agent and the Lenders, substantially in the form of
Exhibit F-4.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s
funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving
Credit Percentage. All L/C Advances shall be denominated in Dollars.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit
Borrowing.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Issuer” means KeyBank National Association in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.08. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Additional Lenders and the Swing Line Lender.



18









 





     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Company and the Administrative Agent.



     “Letter of Credit” means any standby letter of credit issued hereunder.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business
Day, the next preceding Business Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



     “Letter of Credit Sublimit” means an amount equal to $20,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Revolving Credit Facility.



     “LIBOR Rate” means, for any Interest Period with respect to a LIBOR Rate Loan, the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or Bloomberg or other commercially available source providing quotations of
BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, for deposits in
the relevant currency (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period.



     “LIBOR Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest at
a rate based on the LIBOR Rate. LIBOR Rate Loans may be denominated in Dollars or in Yen. Except as
set forth in Section 2.02(c), all Loans denominated in Yen must be LIBOR Rate Loans.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to a Borrower under Article II
in the form of a Term Loan, a Revolving Credit Loan or a Swing Line Loan.



     “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the
Guaranties, (d) the Collateral Documents, (e) the Fee Letter, (f) each Issuer Document, (g) each
Secured Hedge Agreement, (h) each Secured Cash Management Agreement, (i) each Designated Borrower
Request and Assumption Agreement and (j) the Forbearance Letter; provided that for purposes
of the definition of “Material Adverse Effect” and Articles IV through IX, “Loan
Documents” shall not include Secured Hedge Agreements or Secured Cash Management Agreements.



     “Loan Parties” means, collectively, the Company, each Japanese Borrower, each
Subsidiary Guarantor and each Designated Borrower.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, liabilities (actual or contingent),
condition (financial



19









 







or otherwise) or prospects of the Company and its Subsidiaries taken as a
whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any
Lender under any Loan Document, or of the ability of any Loan Party to perform its obligations
under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan Document to which it
is a party.



     “Material Contract” means, collectively, with respect to the Company or any
Subsidiary, each contract to which such Person is a party and which (a) involves aggregate
consideration payable to or by such Person of $500,000 or more in any year, (b) involves
Indebtedness of such Person of $500,000 or more, (c) involves Indebtedness owed to such Person of
$500,000 or more or (d) is otherwise material to the business or operations of such Person;
provided that Material Contracts shall not include (x) Loan Documents, (y) contracts with
attorneys, accountants and other professionals or (z) customer purchase orders under which an
amount equal to or greater than 90% of total payments are to be made within the first three months
of delivery, installation or technical acceptance of the inventory, products or services subject to
such order (other than such purchase orders that, individually or in the aggregate with all
purchase orders with the same customer, provide for payments to the Company and/or any of its
Subsidiaries over the term of such purchase order(s), which, in the aggregate, equal or exceed 10%
of the quarterly revenue of the Company and its Subsidiaries, taken as a whole).



     “Material Personal Property” means the following types of personal property: goods,
consumer goods, equipment, chattel paper, instruments, promissory notes, investment property,
rights to payment for money or funds advanced or sold, insurance proceeds, general intangibles,
payment intangibles, letter-of-credit rights and commercial tort claims, in each case with a book
value greater than or equal to $1,000,000 individually or in the aggregate (with all other property
of the same type); provided that “Material Personal Property” shall not include inventory,
accounts, deposit accounts, securities accounts, commodity accounts, commodity contracts or
Material Contracts. To the extent any of the above terms are defined in Articles 8 or 9 of the UCC
such terms shall have such definitions (it being understood that such definitions shall equally
apply to property located in the US and property not located in the US).



     “Material Property” means, collectively, Material Personal Property, Material Real
Property and Material Contracts.



     “Material Real Property” means, collectively, (a) any real property with a book value
greater than or equal to $1,000,000 individually or in the aggregate during a fiscal year and (b)
any lease of real property which contains personal property with a book value greater than or equal
to $1,000,000, or which is material to the business or operations of the Loan Party or Subsidiary
with an interest therein.



     “Maturity Date” means the fifth anniversary of the Closing Date.



     “Measurement Period” means, at any date of determination, the most recently completed
four fiscal quarters of the Company.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Mortgage” means a deed of trust, trust deed, deed to secure debt, mortgage, leasehold
mortgage and leasehold deed of trust, in form and substance satisfactory to the Administrative
Agent.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to



20









 







make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Net Proceeds” means (i) cash payments (including any cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received) received from such Asset Sale, net of any bona fide direct costs incurred in
connection with such Asset Sale, including (a) income taxes reasonably estimated to be actually
payable within two years of the date of such Asset Sale as a result of any gain recognized in
connection with such Asset Sale and (b) payment of any Indebtedness (other than the Loans) that is
required to be repaid under the terms thereof as a result of such Asset Sale and actually paid at
the time of receipt of such cash payment to a Person that is not an Affiliate of any Loan Party,
(ii) any cash payments or proceeds received by Company or any of its Subsidiaries (a) under any
business interruption or casualty insurance policy in respect of a covered loss thereunder or (b)
as a result of the taking of any assets of Company or any of its Subsidiaries by any Person
pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any
such assets to a purchaser with such power under threat of such a taking, in each case net of any
actual and reasonable documented costs incurred by Company or any of its Subsidiaries in connection
with the adjustment or settlement of any claims of Company or such Subsidiary in respect thereof;
and (iii) the cash proceeds (net of underwriting discounts and commissions and other reasonable
costs and expenses associated therewith, including reasonable legal fees and expenses) from the
issuance of Equity Interests or incurrence of Indebtedness by Company or any of its Subsidiaries.



     “Note” means a Term Note or a Revolving Credit Note, as the context may require.



     “NPL” means the National Priorities List under CERCLA.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any and all Loan Parties arising under any Loan Document or otherwise with respect
to any Loan or Letter of Credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-US jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Other AJI Equity Interests” means Equity Interests of AJI owned by any Person other
than the Loan Parties.



     “Other Foreign Collateral” means all of the “Collateral” and “Mortgaged Property” (or
similar terms) referred to in the Other Foreign Collateral Documents and all of the other property



21









 







that is or is intended under the terms of the Other Foreign Collateral Documents to be subject to
Liens in favor of the Secured Parties (or any of them).



     “Other Foreign Collateral Documents” means, collectively, the Other Foreign Security
Agreements, the Other Foreign Mortgages, each of the mortgages, collateral assignments, Other
Foreign Security Agreement supplements, security agreements, pledge agreements or other similar
agreements executed by any Other Foreign Loan Party and delivered to the Administrative Agent in
accordance with Section 6.13, and each of the other agreements, instruments or documents
executed by any Other Foreign Loan Party in connection with any Loan Document that creates or
purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured
Parties.



     “Other Foreign Loan Party” means any Loan Party that is not a US Loan Party, a
Japanese Loan Party, a Korean Loan Party or a Taiwanese Loan Party.



     “Other Foreign Mortgages” means each Mortgage delivered by an Other Foreign Loan
Party.



     “Other Foreign Security Agreements” means each pledge and security agreement and
pledge and security agreement supplement delivered by an Other Foreign Loan Party in accordance
with Section 6.13.



     “Other Foreign Subsidiary” means any Subsidiary that is not a US Subsidiary, a
Japanese Subsidiary, a Korean Subsidiary or a Taiwanese Subsidiary.



     “Other Foreign Subsidiary Guarantors” means, collectively, each Other Foreign
Subsidiary that executes and delivers a guaranty or guaranty supplement in accordance with
Section 6.13.



     “Other Foreign Subsidiary Guaranty” means each Guaranty made by the Other Foreign
Subsidiary Guarantors in favor of the Administrative Agent and the Lenders in accordance with
Section 6.13.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means (a) with respect to Term Loans and Revolving Credit Loans
on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Term Loans and Revolving
Credit Loans, as the case may be, occurring on such date; (b) with respect to Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of such Swing Line Loans occurring on such date; and (c) with respect
to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding
amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in
accordance with banking industry rules on interbank compensation, and (b) with respect to any



22









 







amount denominated in Yen, the rate of interest per annum, as published by Reuters (or Bloomberg or
other commercially available source providing quotations of such rate as designated by the
Administrative Agent from time to time), at which overnight deposits in Yen, in an amount
approximately equal to the amount with respect to which such rate is being determined, would be
offered for such day in the applicable offshore interbank market for such currency to major banks
in such interbank market.



     “Participant” has the meaning specified in Section 10.06(d).



     “Patent Security Agreement” means any Patent Security Agreement executed and delivered
by any Obligor, in substantially the form of Exhibit A to the US Security Agreement.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “PCAOB” means the Public Company Accounting Oversight Board.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Company or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



     “Pledged Debt” means all notes and other instruments evidencing Indebtedness pledged
under any and all Security Agreements.



     “Pledged Equity” means all Equity Interests pledged under any and all Security
Agreements.



     “Prepayment Amount” has the meaning specified in Section 2.05(a).



     “Prepayment Date” has the meaning specified in Section 2.05(a).



     “Prepayment Notice” has the meaning specified in Section 2.05(a).



     “Quarterly Payment Date” means the last Business Day of each of March, June, September
and December.



     “Refinancings” means, with respect to any Indebtedness, any refinancings, refundings,
renewals or extensions thereof; provided that the amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or extension except by an amount
equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder, the direct or any contingent obligor with respect thereto
is not changed, and the collateral (if any) with respect thereto is not changed, in each case as a



23









 







result of or in connection with such refinancing, refunding, renewal or extension; provided
that the terms relating to principal amount, amortization, maturity, collateral (if any) and
subordination (if any), and other material terms taken as a whole, of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any material respect to the
Loan Parties or the Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to
any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate.



     “Register” has the meaning specified in Section 10.06(c).



     “Registered Public Accounting Firm” has the meaning specified by the Securities Laws
and shall be independent of the Company as prescribed by the Securities Laws.



     “Related Documents” means each of the Ancillary Agreements identified in the
Acquisition Agreement and each other material agreement entered into in connection with the
Acquisition Agreement.



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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Term Loans or Revolving Credit Loans, a Committed Loan Notice, (b) with respect to
an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan,
a Swing Line Loan Notice.



     “Required Lenders” means, as of any date of determination, Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit
Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being
deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate
unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment
of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall
be excluded for purposes of making a determination of Required Lenders.



     “Required Revolving Lenders” means, as of any date of determination, at least two
Revolving Credit Lenders holding more than 50% of the sum of (a) the Total Revolving Credit
Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving
Credit Lender for purposes of this definition) and (b) the aggregate unused Revolving Credit
Commitments; provided that the unused Revolving Credit Commitment of, and the portion of
the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Revolving Lenders.



     “Required Term Lenders” means, as of any date of determination, at least two Term
Lenders holding more than 50% of the Term Loan Facility on such date; provided that the
portion of the Term Loan Facility held by any Defaulting Lender shall be excluded for purposes
of making a determination of Required Term Lenders.



24









 





     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party (other than a Japanese Loan
Party), or any director, in the case of any Japanese Loan Party. Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Loan Party.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of any
Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such capital stock or other Equity
Interest, or on account of any return of capital to any Person’s stockholders, partners or members
(or the equivalent of any thereof), or any option, warrant or other right to acquire any such
dividend or other distribution or payment.



     “Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each
date of a Borrowing of a LIBOR Rate Loan denominated in Yen, and (ii) each date of a continuation
of a LIBOR Rate Loan denominated in Yen pursuant to Section 2.02; and (b) with respect to
any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit
denominated in Yen, (ii) each date of an amendment of any such Letter of Credit having the effect
of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of
any payment by the L/C Issuer under any Letter of Credit denominated in Yen, and (iv) the last
Business Day of each calendar month and such additional dates as the Administrative Agent or the
L/C Issuer shall determine or the Required Lenders shall require.



     “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type, in the same currency and, in the case of LIBOR Rate Loans, having
the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section
2.01(b).



     “Revolving Credit Commitment” means, as to each Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b),
(b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount
set forth opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Credit
Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.



     “Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time. As of the Closing Date the Revolving
Credit Facility is $52,500,000.



     “Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time.



     “Revolving Credit Loan” has the meaning specified in Section 2.01(b).



     “Revolving Credit Note” means a promissory note made by a Borrower in favor of a
Revolving Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be,
made by such Revolving Credit Lender, substantially in the form of Exhibit C-2.



25









 





     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and any successor thereto.



     “Same Day Funds” means (a) with respect to disbursements and payments in Dollars and
payments in Yen, immediately available funds, and (b) with respect to disbursements in Yen, funds
available on a basis as may be determined by the Administrative Agent or the L/C Issuer, as the
case may be, to be customary in the place of disbursement for the settlement of international
banking transactions in Yen.



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Secured Cash Management Agreement” means any Cash Management Agreement that is
entered into by and between any Borrower and any Cash Management Bank.



     “Secured Hedge Agreement” means any interest rate Swap Contract permitted under
Section 7.02(a) that is entered into by and between any Borrower and any Hedge Bank.



     “Secured Parties” means, collectively, the Administrative Agent, the Lenders
(including the Swing Line Lender), the L/C Issuer, the Hedge Banks, the Cash Management Banks, each
co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to
Section 9.05, or by the Secured Parties pursuant to any other Loan Document, and the other
Persons the Obligations owing to which are or are purported to be secured by the Collateral under
the terms of the Collateral Documents.



     “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the PCAOB.



     “Security Agreements” means, collectively, the US Security Agreement, the Japanese
Security Agreements, the Korean Security Agreements, the Taiwanese Security Agreements and the
Other Foreign Security Agreements.



     “Shinko” has the meaning specified in the definition of “Acquisition Agreement”.



     “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the tangible and intangible property
(including goodwill) of such Person is greater than the total amount of liabilities, including
contingent liabilities, of such Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such
debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which such Person’s property would
constitute an unreasonably small capital, and (e) such Person is able to pay its debts and
liabilities, contingent obligations and other commitments as they mature in the ordinary course of
business. The amount of contingent liabilities (other than operating liabilities) at any time shall
be computed as the amount that, in
the light of all the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.



     “SPC” has the meaning specified in Section 10.06(h).



26









 





     “Specified Obligations” means Obligations consisting of the principal of and interest
on the Loans, reimbursement obligations in respect of disbursements made by an L/C Issuer with
respect to Letters of Credit and fees payable hereunder to the Lenders with Revolving Credit
Commitments and the Lenders with Term Loan Commitments (including under Sections 2.09 and
2.03).



     “Spot Rate” for a currency means the rate determined by the Administrative Agent or
the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the
spot rate for the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency; and
provided further that the L/C Issuer may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of any Letter of Credit denominated
in Yen.



     “Sub Debt Documents” means, collectively, the loan agreements, indentures, note
purchase agreements, promissory notes, guarantees, and other instruments and agreements evidencing
the terms of Subordinated Debt.



     “Subordinated Debt” means unsecured Indebtedness of a Loan Party (including the
Subordinated Notes) subordinated in right of payment to the Obligations pursuant to documentation
containing redemption and other prepayment events, maturities, amortization schedules, covenants,
events of default, remedies, acceleration rights, subordination provisions and other material terms
satisfactory to the Administrative Agent.



     “Subordinated Notes” means the 5 3/4% unsecured convertible subordinated notes of the
Company due July 3, 2008 in an aggregate principal amount of $86,700,000 issued and sold on July 3,
2001 pursuant to the Subordinated Notes Documents.



     “Subordinated Notes Documents” means the Indenture, dated as of July 3, 2001, between
the Company and State Street Bank and Trust Company of California, N.A., a national banking
association, the Subordinated Notes and all other agreements, instruments and other documents
pursuant to which the Subordinated Notes have been or will be issued or otherwise setting forth the
terms of the Subordinated Notes.



     “Subordination Provisions” is defined in Section 8.01(m).



     “Subsidiary” of a Person means a corporation, partnership, joint venture (other than
any joint venture resulting from any strategic investment or joint development arrangement),
limited liability company or other business entity of which a majority of the shares of securities
or other interests having ordinary voting power for the election of directors or other governing
body (other than securities or interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Company.



     “Subsidiary Guarantors” means, collectively, the US Subsidiary Guarantors, the
Japanese Subsidiary Guarantors, the Taiwanese Subsidiary Guarantors, the Korean Subsidiary
Guarantors and the Other Foreign Subsidiary Guarantors.



27









 





     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).



     “Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means KeyBank National Association in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b)
the Revolving Credit Facility. The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Facility.



     “Synthetic Debt” means, with respect to any Person as of any date of determination
thereof, all obligations of such Person in respect of transactions entered into by such Person that
are intended to function primarily as a borrowing of funds (including any minority interest
transactions that function primarily as a borrowing) but are not otherwise included in the
definition of “Indebtedness” or as a liability on the consolidated balance sheet of such
Person and its Subsidiaries in accordance with GAAP.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property (including sale and leaseback transactions, but excluding any true operating
leases), in each case, creating obligations that do not appear on the balance sheet of



28









 







such Person
but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as
the indebtedness of such Person (without regard to accounting treatment).



     “Taiwanese Collateral” means all of the “Collateral” and “Mortgaged Property” (or
similar terms) referred to in the Taiwanese Collateral Documents and all of the other property that
is or is intended under the terms of the Taiwanese Collateral Documents to be subject to Liens in
favor of the Secured Parties (or any of them).



     “Taiwanese Collateral Documents” means, collectively, the Taiwanese Security
Agreements, the Taiwanese Mortgages, each of the mortgages, collateral assignments, Taiwanese
Security Agreement supplements, security agreements, pledge agreements or other similar agreements
executed by any Taiwanese Loan Party and delivered for the benefit of the Secured Parties in
accordance with Section 6.13, and each of the other agreements, instruments or documents
executed by any Taiwanese Loan Party that creates or purports to create a Lien for the benefit of
the Secured Parties.



     “Taiwanese Loan Party” means any Loan Party that is organized under the Laws of Taiwan
or any political subdivision or jurisdiction thereof.



     “Taiwanese Mortgages” means each Mortgage delivered by a Taiwanese Loan Party.



     “Taiwanese Security Agreements” means each pledge and security agreement, in
substantially the forms of Exhibit G-4 and each other pledge and security agreement and
pledge and security agreement supplement delivered by a Taiwanese Loan Party in accordance with
Section 6.13.



     “Taiwanese Subsidiary” means any Subsidiary that is organized under the Laws of Taiwan
or any political subdivision or jurisdiction thereof.



     “Taiwanese Subsidiary Guarantors” means, collectively, the Taiwanese Subsidiaries
listed on Schedule 6.13 and each other Taiwanese Subsidiary that executes and delivers a
guaranty or guaranty supplement in accordance with Section 6.13.



     “Taiwanese Subsidiary Guaranty” means each Guaranty made by the Taiwanese Subsidiary
Guarantors in favor of the Administrative Agent and the Lenders, substantially in the form of
Exhibit F-5.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



     “Term Lender” means (a) at any time on or prior to the Closing Date, any Lender that
has a Term Loan Commitment at such time and (b) at any time after the Closing Date, any Lender that
holds Term Loans at such time.



     “Term Loan” means an advance made by any Term Lender under the Term Loan Facility.



     “Term Loan Borrowing” means a borrowing consisting of simultaneous Term Loans of the
same Type and, in the case of LIBOR Rate Loans, having the same Interest Period made by each of the
Term Lenders pursuant to Section 2.01(a).



     “Term Loan Commitment” means, as to each Term Lender, its obligation to make Term
Loans to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any
one



29









 







time outstanding not to exceed the Yen amount set forth opposite such Term Lender’s name on
Schedule 2.01 under the caption “Term Loan Commitment” or opposite such caption in the
Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this Agreement.



     “Term Loan Facility” means, at any time, (a) on or prior to the Closing Date, the
aggregate amount of the Term Loan Commitments at such time and (b) thereafter, the aggregate
principal amount of the Term Loans of all Term Lenders outstanding at such time. As of the Closing
Date the Term Loan Facility is $85,000,000.



     “Term Note” means a promissory note made by the Borrower in favor of a Term Lender
evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit C-1.



     “Threshold Amount” means $5,000,000.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



     “Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all
Revolving Credit Loans, Swing Line Loans and L/C Obligations.



     “Transaction” means, collectively, (a) the entering into by the Loan Parties and their
applicable Subsidiaries of the Loan Documents in each case, to which they are or are intended to be
a party, (b) the Credit Extensions made on the Closing Date, (c) the refinancing of certain
outstanding Indebtedness of the Borrower and its Subsidiaries and the termination of all
commitments with respect thereto and (d) the payment of the fees and expenses incurred in
connection with the consummation of the foregoing.



     “Trademark Security Agreement” means any Trademark Security Agreement executed and
delivered by any Obligor, in substantially in the form of Exhibit B to the US Security Agreement.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a LIBOR
Rate Loan.



     “UCC” means the Uniform Commercial Code as in effect in the State of New York;
provided that, if perfection or the effect of perfection or non-perfection or the priority of any
security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the provisions hereof relating to such
perfection, effect of perfection or non-perfection or priority.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



     “United States” and “US” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     “US Collateral” means all of the “Collateral” and “Mortgaged Property” (or similar
terms) referred to in the US Collateral Documents and all of the other property that is or is



30









 







intended under the terms of the US Collateral Documents to be subject to Liens in favor of the
Administrative Agent for the benefit of the Secured Parties.



     “US Collateral Documents” means, collectively, the US Security Agreement, the US
Mortgages, each of the mortgages, collateral assignments, US Security Agreement supplements,
security agreements, pledge agreements or other similar agreements executed by any US Loan Party
and delivered to the Administrative Agent in accordance with Section 6.13, and each of the
other agreements, instruments or documents executed by any US Loan Party that creates or purports
to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.



     “US Loan Party” means any Loan Party that is organized under the Laws of one of the
states of the United States of America and that is not a CFC.



     “US Mortgages” means each Mortgage delivered by a US Loan Party.



     “US Security Agreement” means a pledge and security agreement, in substantially the
form of Exhibit G-1, and each other pledge and security agreement and pledge and security
agreement supplement delivered by a US Loan Party in accordance with Section 6.13.



     “US Subsidiary” means any Subsidiary that is organized under the Laws of one of the
states of the United States of America and that is not a CFC.



     “US Subsidiary Guarantors” means, collectively, the US Subsidiaries listed on
Schedule 6.13 and each other US Subsidiary that executes and delivers a guaranty or
guaranty supplement in accordance with Section 6.13.



     “US Subsidiary Guaranty” means each Guaranty made by the US Subsidiary Guarantors in
favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit
F-2.



     “Yen” and “¥” mean the lawful currency of Japan.



     “Yen Equivalent” means, at any time, with respect to any amount denominated in
Dollars, the equivalent amount thereof in Yen as determined by the Administrative Agent or the L/C
Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) for the purchase of Yen with Dollars.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:




     (a) 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 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, (i) any
definition of or reference
to any agreement, instrument or other document (including any Organization Document)
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 or in any other Loan Document),
(ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all



31









 







references in a Loan Document to Articles, Sections, Preliminary
Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such
references appear, (v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending, replacing or interpreting such law and any reference to
any law or regulation shall, unless otherwise specified, refer to such law or regulation as
amended, modified or supplemented from time to time, and (vi) 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.




     (b) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to” and
“until” each mean “to but excluding;” and the word “through” means
“to and including.”




     (c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.



     1.03 Accounting Terms. (a) Generally. All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.



          (b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the Company or the
Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Company shall provide to the
Administrative Agent and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations
of such ratio or requirement made before and after giving effect to such change in GAAP.




          (c) Consolidation of Variable Interest Entities. All references herein to consolidated
financial statements of the Company and its Subsidiaries or to the determination of any amount for
the Company and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed to include each
variable interest entity that the Company is required to consolidate pursuant to FASB
Interpretation No. 46 – Consolidation of Variable Interest Entities: an interpretation of ARB No.
51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein.




     1.04 Rounding. Any financial ratios required to be maintained by the Loan Parties
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).



     1.05
Exchange Rates; Currency Equivalents (a) The Administrative Agent or the L/C
Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for



32









 







calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in
Yen. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between the applicable currencies until the next Revaluation
Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or
calculating financial covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar
Equivalent amount as so determined by the Administrative Agent or the L/C Issuer, as applicable.




     (b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation
or prepayment of a LIBOR Rate Loan or the issuance, amendment or extension of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars,
but such Borrowing, LIBOR Rate Loan or Letter of Credit is denominated in Yen, such amount
shall be the Yen Equivalent of such Dollar amount (rounded to the nearest Yen, with 0.5 of a
unit being rounded upward), as determined by the Administrative Agent or the L/C Issuer, as
the case may be.



     1.06 Change of Currency. Each provision of this Agreement also shall be subject to
such reasonable changes of construction as the Administrative Agent may from time to time specify
to be appropriate to reflect a change in currency of any other country and any relevant market
conventions or practices relating to the change in currency.



     1.07 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to Pacific time (daylight or standard, as applicable).



     1.08 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of
such Letter of Credit in effect at such time; provided that with respect to any Letter of Credit
that, by its terms or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be
deemed to be the Dollar Equivalent
of the maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.



ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 The Loans. 



     (a) The Term Loan Borrowing. Subject to the terms and conditions set forth herein,
each Term Lender severally agrees to make loans to the Borrowers in Dollars or in Yen, on the
Closing Date in an aggregate amount as to all Term Lenders not to exceed the Term Loan Commitment
and otherwise in accordance with the terms of this Agreement. The Term Loan Borrowing shall
consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective
Term Loan Commitments. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not
be reborrowed.



     (b) The Revolving Credit Borrowings. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a
“Revolving Credit Loan”) to the Borrowers in Dollars or in Yen from time to time, on any
Business Day during the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Revolving Credit Commitment; provided that after
giving effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings



33









 







shall
not exceed the Revolving Credit Facility, and (ii) the aggregate Outstanding Amount of the
Revolving Credit Loans of any Revolving Credit Lender, plus such Revolving Credit Lender’s
Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations,
plus such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s
Revolving Credit Commitment. Within the limits of each Revolving Credit Lender’s Revolving Credit
Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under
this Section 2.01(b), prepay under Section 2.05, and reborrow under this
Section 2.01(b). Revolving Credit Loans may be Base Rate Loans or LIBOR Rate Loans, as
further provided herein.



     (c) Increase of Revolving Credit Commitments. If at any time after the Closing Date,
so long as no Default or Event of Default has occurred and is continuing, the Borrowers may, by
notice to the Administrative Agent, request that, on the terms and subject to the conditions
contained in this Agreement, the Lenders and/or other financial institutions not then a party to
this Agreement that are approved by the Administrative Agent (each, an “Additional Lender”)
provide additional Revolving Credit Commitments; provided that the aggregate amount of such
additional Revolving Credit Commitments made pursuant to this Section 2.10(c) shall not
exceed $12,500,000. Upon receipt of such notice, Administrative Agent shall use commercially
reasonable efforts to arrange for the Lenders or Additional Lenders to provide such additional
Revolving Credit Commitments. Nothing contained in this Section 2.01(c) or otherwise in
this Agreement is intended to commit any Lender or the Administrative Agent to provide any portion
of any such additional Revolving Credit Commitments. If and to the extent that any Lenders and/or
Additional Lenders agree, in their sole discretion, to provide any such additional Revolving Credit
Commitments, (1) any Additional Lender shall execute a counterpart signature page to this agreement
and deliver originally executed copies of such signature page to the Company and Administrative
Agent, (2) the Revolving Credit Commitment amount shall be increased by the amount of additional
Revolving Credit Commitments agreed to be so provided, (3) the pro rata shares of the respective
Lenders in respect of the Revolving Credit Commitments shall be proportionally adjusted, (4) at
such time and in such manner as the Borrowers and the Administrative Agent shall agree (it being
understood that the Borrowers and Administrative
Agent will use commercially reasonable efforts to avoid the prepayment or assignment of any
LIBOR Loan on a day other than the last day of the Interest Period applicable thereto), the Lenders
shall be deemed to have assigned and assumed outstanding Revolving Loans and participations in
outstanding Letters of Credit held by each Lender to conform to the respective percentages of the
applicable Revolving Credit Commitments of the Lenders, (5) the Borrowers shall execute and deliver
any additional Notes or other amendments or modifications to this Agreement or any other Loan
Document as Agent may reasonably request, which amendments or modifications, notwithstanding
Section 10.01, shall require only the consent of the Administrative Agent and the Borrowers
and not the consent of any Lender, and (6) the Revolving Credit Commitments made pursuant to this
Section 2.01(c) shall be permitted indebtedness under the Sub Debt Documents and shall
constitute “Senior Indebtedness” or similar term relating to the Obligations (as defined in the Sub
Debt Documents) and all such Obligations shall be entitled to the benefits of the subordination
created by the Sub Debt Documents.



     2.02 Borrowings, Conversions and Continuations of Loans. (a) Each Borrowing, each
conversion of Revolving Credit Loans from one Type to the other and each continuation of LIBOR Rate
Loans shall be made upon the Company’s irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to
or continuation of LIBOR Rate Loans denominated in Dollars or of any conversion of LIBOR Rate Loans
denominated in Dollars to Base Rate Loans, (ii) five Business Days prior to the requested date of
any Borrowing or continuation of LIBOR



34









 







Rate Loans denominated in Yen, and (iii) on the requested
date of any Borrowing of Base Rate Loans. Each telephonic notice by the Company pursuant to this
Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a
written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the
Company. Each Borrowing of, conversion to or continuation of LIBOR Rate Loans shall be in a
principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as
provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base
Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the
Company is requesting a Term Loan Borrowing, a Revolving Credit Borrowing, a conversion of Term
Loans or Revolving Credit Loans from one Type to the other, or a continuation of LIBOR Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or
continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or Revolving
Credit Loans are to be converted, (v) if applicable, the duration of the Interest Period with
respect thereto, (vi) the currency of the Revolving Credit Loans to be borrowed, and (vii) if
applicable, the Designated Borrower. If the Company fails to specify a currency in a Committed Loan
Notice requesting a Borrowing, then the Loans so requested shall be made in Dollars. If the Company
fails to specify a Type of Loan in a Committed Loan Notice or if the Company fails to give a timely
notice requesting a conversion or continuation, then the applicable Loans shall be made as, or
converted to, Base Rate Loans; provided that in the case of a failure to timely request a
continuation of Loans denominated in Yen, such Loans shall be continued as LIBOR Rate Loans in
their original currency with an Interest Period of one month. Any automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in effect with respect to
the applicable LIBOR Rate Loans. If the Company requests a Borrowing of, conversion to, or
continuation of LIBOR Rate Loans in any such Loan Notice, but fails to specify an Interest Period,
it will be deemed to have specified an Interest Period of one month. Notwithstanding anything to
the contrary herein, a Swing Line Loan may not be converted to a LIBOR Rate Loan. No Loan may be
converted into or continued as a Loan
denominated in a different currency. Revolving Credit Loans may be prepaid in the original
currency of such Revolving Credit Loan and reborrowed in the other currency.



          (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount (and currency) of its Applicable Percentage under the Applicable
Facility of the applicable Term Loans or Revolving Credit Loans, and if no timely notice of a
conversion or continuation is provided by the Company, the Administrative Agent shall notify each
Lender of the details of any automatic conversion to Base Rate Loans or continuation of Committed
Loans denominated in a currency other than Dollars, in each case as described in the preceding
clause. In the case of a Term Loan Borrowing or a Revolving Credit Borrowing, each Appropriate
Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at
the Administrative Agent’s Office for the applicable currency not later than 1:00 p.m., in the case
of any Loan denominated in Dollars, and not later than the Applicable Time specified by the
Administrative Agent in the case of any Loan in Yen, in each case on the Business Day specified in
the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section
4.01), the Administrative Agent shall make all funds so received available to the Company or
other applicable Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of such Borrower on the books of KeyBank with the amount of such funds or
(ii) wire transfer of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Company; provided that if, on the
date a Committed Loan Notice with respect to a Revolving Credit Borrowing denominated in Dollars is
given by the Company, there are L/C Borrowings outstanding, then the proceeds of such Revolving
Credit Borrowing, first, shall be




35









 







applied to the payment in full of any such L/C
Borrowings, and, second, shall be made available to the applicable Borrower as provided
above.




          (c) Except as otherwise provided herein, a LIBOR Rate Loan may be continued or converted only
on the last day of an Interest Period for such LIBOR Rate Loan. During the existence of a Default,
no Loans may be requested as, converted to or continued as LIBOR Rate Loans (whether in Dollars or
Yen) without the consent of (x) with respect to Term Loans, the Required Term Lenders, and (y) with
respect to Revolving Credit Loans, the Required Revolving Lenders. During the existence of an
Event of Default (x) the Required Term Lenders may demand that any or all of the then outstanding
LIBOR Rate Loans that are Term Loans denominated in Yen be redenominated into Dollars in the amount
of the Dollar Equivalent thereof, on the last day of the then current Interest Period with respect
thereto, and (y) the Required Revolving Lenders may demand that any or all of the then outstanding
LIBOR Rate Loans that are Revolving Credit Loans denominated in Yen be prepaid, or redenominated
into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current
Interest Period with respect thereto.




          (d) The Administrative Agent shall promptly notify the Company and the Lenders of the interest
rate applicable to any Interest Period for LIBOR Rate Loans upon determination of such interest
rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the
Company and the Lenders of any change in KeyBank’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.




          (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than ten Interest
Periods in effect.




     2.03 Letters of Credit.




     (a) The Letter of Credit Commitment. (i) Subject to the terms and conditions
set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the
Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on
any Business Day during the period from and including the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in Yen for the
account of any Borrower, and to amend or extend Letters of Credit previously issued by it,
in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of
Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of
Credit issued for the account of any Borrower and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any Letter of Credit,
(x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility,
(y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit
Lender, plus such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount
of all L/C Obligations, plus such Lender’s Applicable Revolving Credit Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit
Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the
Letter of Credit Sublimit. Each request by the Company for the issuance, amendment or
extension of a Letter of Credit shall be deemed to be a representation by the Company that
the L/C Credit Extension so requested complies with the conditions set forth in the proviso
to the preceding sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Company may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed.



36









 






     (ii) The L/C Issuer shall not issue any Letter of Credit if:




     (A) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after the
date of issuance or last extension, unless the Required Revolving Lenders
have approved such expiry date; or




     (B) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date or last extension, unless all the
Revolving Credit Lenders have approved such expiry date.




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of
Credit if:




     (A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer
from issuing such Letter of Credit, or any Law applicable to the L/C Issuer
or any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the L/C Issuer shall
prohibit, or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the L/C Issuer in good faith
deems material to it;




     (B) the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer applicable to letters of credit generally;




     (C) except as otherwise agreed by the Administrative Agent and the L/C
Issuer, such Letter of Credit is in an initial stated amount less than
$500,000, in the case of a standby Letter of Credit;




     (D) except as otherwise agreed by the Administrative Agent and the L/C
issuer, such Letter of Credit is to be denominated in a currency other than
Dollars or Yen; or




     (E) a default of any Lender’s obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory arrangements
with the applicable Borrowers or such Lender to eliminate the L/C Issuer’s
risk with respect to such Lender.




     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer
would not be permitted at such time to issue such Letter of Credit in its amended
form under the terms hereof.




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit
if (A) the L/C Issuer would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter of Credit.



37









 






     (vi) The L/C Issuer shall act on behalf of the Revolving Credit Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and immunities (A)
provided to the Administrative Agent in Article IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term “Administrative Agent” as used in
Article IX included the L/C Issuer with respect to such acts or omissions,
and (B) as additionally provided herein with respect to the L/C Issuer.



          (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of a Borrower and, if such Borrower is not the Company, the Company, delivered to the L/C
Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of such Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00
a.m. at least two Business Days (or such later date and time as the Administrative Agent and the
L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail
reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date
thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the
L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application
shall specify in form and detail reasonably satisfactory to the L/C Issuer (1) the Letter of
Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day);
(3) the nature of the proposed amendment; and (4) such other matters as the L/C Issuer may require.
Additionally, the applicable Borrower shall furnish to the L/C Issuer and the Administrative Agent
such other documents and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may
require.




          (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit Application from the applicable Borrower and, if not, the
L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has
received written notice from any Revolving Credit Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall
not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the applicable Borrower or enter
into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s
usual and customary business practices. Immediately upon the issuance of each Letter of Credit,
each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal
to the product of such Revolving Credit Lender’s Applicable Revolving Credit Percentage times the
amount of such Letter of Credit.




          (iii) If a Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer
may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any




38









 







such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least
once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice
Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the L/C Issuer, neither the Company nor any Borrower shall be
required to make a specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed to
have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided
that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that
it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit
in its revised form (as extended) under the terms hereof (by reason of the provisions of clause
(ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is five Business Days before the Non-Extension
Notice Date (1) from the Administrative Agent that the Required Revolving Lenders have elected not
to permit such extension or (2) from the Administrative Agent, any Revolving Credit Lender or any
Borrower that one or more of the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the L/C Issuer not to permit such extension.




          (iv) If a Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer
may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the
automatic reinstatement of all or a portion of the stated amount thereof after any drawing
thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by the L/C
Issuer, neither the Company nor any Borrower shall be required to make a specific request to the
L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been
issued, except as provided in the following sentence, the Revolving Credit
Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate
all or a portion of the stated amount thereof in accordance with the provisions of such Letter of
Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C
Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing
thereunder by giving notice of such non-reinstatement within a specified number of days after such
drawing (the “Non-Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if
it has received a notice (which may be by telephone or in writing) on or before the day that is
thirty (30) days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the
Required Revolving Lenders have elected not to permit such reinstatement or (B) from the
Administrative Agent, any Revolving Credit Lender or any Borrower that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement
as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer
not to permit such reinstatement.




          (v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit
to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also
deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.




          (c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from
the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the
L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof. In the case
of a Letter of Credit denominated in Yen, the applicable Borrower shall reimburse the L/C Issuer in
Yen, unless (A) the L/C Issuer (at its option) shall have specified in such notice that it will
require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement
in Dollars, the applicable Borrower shall have notified the L/C Issuer promptly following receipt
of the notice of drawing that such Borrower will reimburse the




39









 







L/C Issuer in Dollars. In the case
of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in Yen, the
L/C Issuer shall notify the applicable Borrower of the Dollar Equivalent of the amount of the
drawing promptly following the determination thereof. Not later than 11:00 a.m. on the date of any
payment by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable
Time on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in Yen
(each such date, an “Honor Date”), the applicable Borrower shall reimburse the L/C
Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the
applicable currency. If the applicable Borrower (or any other Borrower) fails to so reimburse the
L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit
Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the
amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in Yen) (the
“Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Applicable
Revolving Credit Percentage thereof. In such event, the applicable Borrower shall be deemed to have
requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Revolving Credit Commitments and the conditions set forth in Section
4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer
or the Administrative Agent pursuant to this Section 2.03 (c)(i) may be given by telephone
if immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.




          (ii) Each Revolving Credit Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars, at
the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its
Applicable Revolving Credit Percentage of the Unreimbursed Amount not later than
1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Company in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.




          (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be
satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from
the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear
interest at the Default Rate. In such event, each Revolving Credit Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.




          (iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter
of Credit, interest in respect of such Lender’s Applicable Revolving Credit Percentage of such
amount shall be solely for the account of the L/C Issuer.




          (v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may
have against the L/C Issuer, any Borrower, any Subsidiary or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or




40









 







(C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided that each Revolving Credit
Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to
the conditions set forth in Section 4.02 (other than delivery by the Company of a Committed Loan
Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the
applicable Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided herein.




          (vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for
the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal
to the applicable Overnight Rate from time to time in effect, plus any administrative, processing
or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute
such Lender’s Committed Loan included in the relevant Borrowing or L/C Advance in respect of the
relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any
Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under
this clause NO shall be conclusive absent manifest error.




          (d) Repayment of Participations. (i) At any time after the L/C Issuer has made a
payment under any Letter of Credit and has received from any Revolving Credit Lender such Lender’s
L/C Advance in respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower
or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent),
the Administrative Agent will distribute to such Lender its Applicable Revolving Credit Percentage
thereof in Dollars and in the same funds as those received by the Administrative Agent.




          (ii) If any payment received by the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered into by the L/C
Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for
the account of the L/C Issuer its Applicable Revolving Credit Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to
time in effect. The obligations of the Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Agreement.




          (e) Obligations Absolute. The obligation of each applicable Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:





     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that any
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any



41









 







such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Currency to any Borrower or any Subsidiary or in the relevant currency markets
generally; or




     (vi) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, any Borrower or any Subsidiary.



     Each Borrower shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance with such
Borrower’s instructions or other irregularity, such Borrower will immediately notify the L/C
Issuer. Each Borrower shall be conclusively deemed to have waived any such claim against the L/C
Issuer and its correspondents unless such notice is given as aforesaid.



          (f) Role of L/C Issuer. Each Lender and each Borrower agrees that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Revolving Credit Lenders or the
Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Issuer Document.
Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided that this assumption is not
intended to, and shall not, preclude such Borrower’s pursuing such rights and remedies as it may
have against the beneficiary or transferee at law or under any other agreement. None of the L/C
Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(e); provided
that anything in such clauses to the contrary notwithstanding, a Borrower may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to such Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower
which such Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence
or the




42









 







L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C
Issuer may accept documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary, and the L/C Issuer
shall not be responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective
for any reason.




          (g) Cash Collateral. (i) Within 3 Business Days following the request of the
Administrative Agent, (A) if the L/C Issuer has honored any full or partial drawing request under
any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (B) if, as of the Letter
of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the applicable
Borrower shall, in each case, Cash Collateralize the then Outstanding Amount of all L/C
Obligations.





     (ii) In addition, if the Administrative Agent notifies the Company at any time that the
Outstanding Amount of all L/C Obligations at such time exceeds 105% of the Letter of Credit
Sublimit then in effect, then, within three Business Days after receipt of such notice, each
Borrower shall Cash Collateralize the L/C Obligations in an amount equal to its pro rata
share of the amount by which the Outstanding Amount of all L/C Obligations exceeds the
Letter of Credit Sublimit.




     (iii) The Administrative Agent may, at any time and from time to time after the initial
deposit of Cash Collateral, request that additional Cash Collateral be provided in order to
protect against the results of exchange rate fluctuations.




     (iv) Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this Section
2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of
the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance reasonably satisfactory to
the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the
Lenders). Derivatives of such term have corresponding meanings. Each Borrower hereby grants
to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security
interest in all such Cash Collateral and all proceeds of the foregoing. Cash Collateral
shall be maintained in blocked, non-interest bearing deposit accounts at KeyBank, or, to the
extent requested by the Company, invested in Cash Equivalents of a tenor reasonably
satisfactory to the Administrative Agent, which Cash Equivalents shall be held in the name
of the applicable Borrower and under control of the Administrative Agent in a manner
reasonably satisfactory to Administrative Agent. If at any time the Administrative Agent
determines that any funds held as Cash Collateral are subject to any right or claim of any
Person other than the Administrative Agent or that the total amount of such funds is less
than the aggregate Outstanding Amount of all L/C Obligations, the applicable Borrower will,
within 3 Business Days following demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount
equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of
funds, if any, then held as Cash Collateral that the Administrative Agent determines to be
free and clear of any such right and claim. Upon the drawing of any Letter of Credit for
which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent
permitted under applicable Laws, to reimburse the L/C Issuer; provided that, at the
request of applicable Borrower, the Administrative Agent shall, within a reasonable period
after such request and so long as no Default then exists and no L/C Obligations



43









 







remain
outstanding, release the Cash Collateral held hereunder as security and shall assign,
transfer and deliver to the applicable Borrower (without recourse and without any
representations or warranty) such Cash Collateral as is then being released.



          (h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
applicable Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each
Letter of Credit.




          (i) Letter of Credit Fees. Each Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage, in Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter
of Credit issued with respect to such Borrower equal to the Applicable Rate for the currency in
which such Letter of Credit is issued times the Dollar Equivalent of the daily amount
available to be drawn under such Letter of Credit. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.08. Letter of Credit Fees shall be (i) due and
payable on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in
arrears. If there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required
Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.




          (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. Each
Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee with
respect to each Letter of Credit issued with respect to such Borrower, at the rate per annum
specified in the Fee Letter, computed on the Dollar Equivalent of the daily amount available to be
drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due
and payable on the tenth Business Day after the end of each March, June, September and December in
respect of the most recently-ended quarterly period (or portion thereof, in the case of the first
payment), commencing with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.08. In addition, each Borrower shall pay
directly to the L/C Issuer for its own account, in Dollars, the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit issued with respect to such Borrower as from time to time in effect.
Such customary fees and standard costs and charges are due and payable on demand and are
nonrefundable.




          (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.




          (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for the account of, a
Subsidiary, the Company shall be obligated to reimburse the L/C Issuer hereunder for any and all
drawings under such Letter of Credit. The Company hereby acknowledges that the issuance of Letters
of Credit for the account of Subsidiaries inures to the benefit of the Company, and that the
Company’s business derives substantial benefits from the businesses of such Subsidiaries.





44









 





     2.04 Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions
set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, to make loans in Dollars (each such loan, a
“Swing Line Loan”) to the Company from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the
Applicable Revolving Credit Percentage of the Outstanding Amount of Revolving Credit Loans and L/C
Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s
Revolving Credit Commitment; provided that after giving effect to any Swing Line Loan, (i)
the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility at such
time, and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving
Credit Lender at such time, plus such Revolving Credit Lender’s Applicable Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such
Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all
Swing Line Loans at such time shall not exceed such Lender’s Revolving Credit Commitment, and
provided further that the Company shall not use the proceeds of any Swing Line Loan
to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Company may borrow under this Section 2.04, prepay under
Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a
Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing
Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such
Revolving Credit Lender’s Applicable Revolving Credit Percentage times the amount of such Swing
Line Loan.



          (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Company’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $1,000,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the
Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Company. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Revolving Credit Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the proviso to the first sentence of Section 2.04(a), or (B) that one or more of
the applicable conditions specified in Article IV is not then satisfied, then, subject to
the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the
borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Company.





     (c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time in its
sole and absolute discretion may request, on behalf of the Company (which
hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that
each Revolving Credit Lender make a Base Rate Loan in an amount equal to such Lender’s
Applicable Revolving Credit Percentage of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the



45









 







requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving
Credit Facility and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Company with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Revolving Credit Lender shall make
an amount equal to its Applicable Revolving Credit Percentage of the amount specified in
such Committed Loan Notice available to the Administrative Agent in Same Day Funds for the
account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated
payments not later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Revolving Credit Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to the Company in such
amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk
participation in the relevant Swing Line Loan and each Revolving Credit Lender’s payment to
the Administrative Agent for the account of the Swing Line Lender pursuant to Section
2.04(c)(i) shall be deemed payment in respect of such participation.




     (iii) If any Revolving Credit Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time specified
in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, plus any administrative, processing
or similar fees customarily charged by the Swing Line Lender in connection with the
foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount
so paid shall constitute such Lender’s Loan included in the relevant Borrowing or funded
participation in the relevant Swing Line Loan, as the case may be. A certificate of the
Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to
any amounts owing under this clause (iii) shall be conclusive absent manifest error.




     (iv) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, the Company or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided that each Revolving Credit Lender’s obligation to make Revolving Credit
Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in
Section 4.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Company to repay Swing Line Loans, together with interest as
provided herein.




     (d) Repayment of Participations. (i) At any time after any Revolving Credit
Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line



46









 






Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Revolving Credit Lender its Applicable Revolving Credit Percentage
thereof in the same funds as those received by the Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit
Lender shall pay to the Swing Line Lender its Applicable Revolving Credit Percentage thereof
on demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned, at a rate per annum equal to the applicable Overnight
Rate. The Administrative Agent will make such demand upon the request of the Swing Line
Lender. The obligations of the Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Agreement.



          (e) Interest for Account of Swing Line Lender.The Swing Line Lender shall be
responsible for invoicing the Company for interest on the Swing Line Loans. Until each Revolving
Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04
to refinance such Revolving Credit Lender’s Applicable Revolving Credit Percentage of any Swing
Line Loan, interest in respect of such Applicable Revolving Credit Percentage shall be solely for
the account of the Swing Line Lender.




          (f) Payments Directly to Swing Line Lender. The Company shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.




     2.05 Prepayments




     (a) Voluntary. Each Borrower may, upon notice (a “Prepayment Notice”)
from the Company to the Administrative Agent, at any time or from time to time, voluntarily
prepay Term Loans and Revolving Credit Loans in whole or in part and, except as set forth
below, without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date
of prepayment of Revolving Credit Loans that are LIBOR Rate Loans denominated in Dollars,
(B) five Business Days prior to any date of prepayment of Revolving Credit Loans that are
LIBOR Rate Loans denominated in Yen, (C) one Business Day prior to any date of prepayment of
Revolving Credit Loans that are Base Rate Loans and (D) five Business Days prior to any date
of prepayment of Term Loans; (ii) any prepayment of LIBOR Rate Loans denominated in Dollars
shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof; (iii) any prepayment of LIBOR Rate Loans denominated in Yen shall be in a minimum
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iv)
any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, in each case, the entire principal amount
thereof then outstanding. Each Prepayment Notice shall specify the date (the
“Prepayment Date”) and amount (the “Prepayment Amount”) of such prepayment
and the Type(s) of Loans to be prepaid and, if LIBOR Rate Loans are to be prepaid, the
Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender
of its receipt of each Prepayment Notice, and of the amount of such Lender’s ratable portion
of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant
Facility).




Any prepayment of a LIBOR Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to Section



47









 







3.05. During the first two years after the Closing Date, each such voluntary prepayment
of Term Loans shall be accompanied by a premium equal to: (i) 2% of the principal amount of
such Term Loan being prepaid, if such prepayment occurs on or prior to the first anniversary
of the Closing Date, and (ii) 1% of the principal amount of such Term Loan being prepaid, if
such prepayment occurs after the first anniversary of the Closing Date but on or prior to
the second anniversary of the Closing Date. Each prepayment of (x) the outstanding Term
Loans pursuant to this Section 2.05(a) shall be applied to each of the principal
repayment installments thereof pro rata and (y) the outstanding Revolving Credit Loans shall
be applied to the Revolving Credit Loans, and each such prepayment shall be paid to the
Lenders in accordance with their respective Applicable Percentages in respect of each of the
relevant Facilities.




     (b) Swing Line. The Company may, upon notice to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that (A)
such notice must be received by the Swing Line Lender and the Administrative Agent not later
than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a
minimum principal amount of $100,000. Each such notice shall specify the date and amount of
such prepayment. If such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein.




     (c) Mandatory.




     (i) Revolving Credit Facility. If the Administrative Agent notifies
the Company at any time that the Total Revolving Credit Outstandings at such time
exceed an amount equal to 100% of the Revolving Credit Facility then in effect,
then, within three Business Days after receipt of such notice, each Borrower shall
prepay its pro rata share of the Revolving Credit Loans, Swing Line Loans and L/C
Borrowings and/or each Borrower shall Cash Collateralize the L/C Obligations in an
amount equal to the its pro rata share of the aggregate amount sufficient to reduce
such Outstanding Amount as of such date of payment to an amount not to exceed 100%
of the Revolving Credit Facility then in effect; provided that, subject to
the provisions of Section 2.03(g)(ii), no Borrower shall be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless
after the prepayment in full of the Loans the Total Revolving Credit Outstandings
exceed the Revolving Credit Facility then in effect. The Administrative Agent may,
at any time and from time to time after the initial deposit of such Cash Collateral,
request that additional Cash Collateral be provided in order to protect against the
results of further exchange rate fluctuations. Prepayments of the Revolving Credit
Facility made pursuant to this Section 2.05(c) first, shall be
applied ratably to the L/C Borrowings and the Swing Line Loans, second,
shall be applied ratably to the outstanding Revolving Credit Loans, and,
third, shall be used to Cash Collateralize the remaining L/C
Obligations. Upon the drawing of any Letter of Credit that has been Cash
Collateralized, the funds held as Cash Collateral shall be applied (without any
further action by or notice to or from the Company or any other Loan Party) to
reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.




     (ii) Asset Sales. No later than the first Business Day following the
date of receipt by Company or any Subsidiary of any Net Proceeds in respect of any
Asset Sale, each Borrower shall prepay its pro rata share of the Term Loans in an
aggregate amount equal to the amount of such Net Proceeds.



48









 






     (iii) Insurance/Condemnation Proceeds. No later than the first
Business Day following the date of receipt by Administrative Agent or by Company or
any Subsidiary of any Net Proceeds described in clause (ii) of the definition of Net
Proceeds, each Borrower shall prepay its pro rata share of the Term Loans in an
aggregate amount equal to the amount of such Net Proceeds; provided that, so
long as no Default or Event of Default shall have occurred and be continuing, (i)
Company and its Subsidiaries may retain the Net Proceeds of any business
interruption insurance and apply such proceeds for working capital purposes, and
(ii) if the aggregate amount of Net Proceeds received in connection with such event
does not exceed $25,000,000, Administrative Agent (if it received an amount equal to
such Net Proceeds) shall instead hold an amount equal to the amount of such Net
Proceeds (and each Borrower shall deliver an amount equal to the amount of any such
Net Proceeds that it or one or more of its Subsidiaries received to Administrative
Agent to be held) in the Collateral Account and, so long as Company or any of its
Subsidiaries proceeds diligently to repair, restore or replace the assets of Company
or such Subsidiary in respect of which such Net Proceeds were received,
Administrative Agent shall from time to time up to 180 days after the receipt of
such Net Proceeds (or such longer period acceptable to the Administrative Agent in
its sole discretion if the repair, restoration or replacement work is being
diligently pursued) disburse to Company or such Subsidiary from such collateral
account, to the extent of any such amounts remaining therein in respect of the
applicable covered loss, amounts necessary to pay the cost of such repair,
restoration or replacement after the receipt by Administrative Agent of invoices or
other documentation reasonably satisfactory to Administrative Agent relating to the
amount of costs so incurred and the work performed.




     (iv) Issuance of Equity Securities. On the date of receipt of the Net
Proceeds from the issuance of any Equity Securities of Company or of any Subsidiary
of Company after the Closing Date, each Borrower shall prepay its pro rata share of
the Term Loans in an aggregate amount equal to 50% of the amount of such Net
Proceeds.




     (v) Issuance of Indebtedness. On the date of receipt of the Net
Proceeds from the issuance of any Indebtedness of Company or any of its Subsidiaries
after the Closing Date, other than Indebtedness permitted pursuant to subsection
7.02, each Borrower shall prepay its pro rata share of the Term Loans in an
aggregate amount equal to the amount of such Net Proceeds.




     (vi) Calculations of Net Proceeds Amounts; Application of Prepayments.
Concurrently with any prepayment of the Term Loans pursuant to subsections (ii)
through (v) above, Company shall deliver to Administrative Agent an officer’s
certificate demonstrating the calculation of the amount of the applicable Net
Proceeds that gave rise to such prepayment. In the event that
Company shall subsequently determine that the actual amount was greater than
the amount set forth in such officer’s certificate, each Borrower shall promptly
make an additional prepayment of the Term Loans in an amount equal to the amount of
such excess. Any prepayments of the Term Loans pursuant to this Section
2.05(c) shall be applied to prepay the Term Loans pro rata to each remaining
scheduled installment of principal.



               (d) On each date when the payment of any Obligations are due hereunder or under any Note, each
Borrower agrees to maintain on deposit in a Cash Collateral Account (as such account shall be
designated by such Borrower in a written notice to the Administrative



49









 




Agent from time to time, its
“Borrower Account”) an amount sufficient in the aggregate as to all such accounts to pay
such Obligations in full. Each Borrower hereby authorizes the Administrative Agent (i) to deduct
automatically all Obligations when due hereunder, or under the Notes from the relevant Borrower
Account, and (ii) if and to the extent any payment under this Agreement or any other Loan Document
is not made when due, to deduct automatically any such amount from any or all of the accounts of
such Borrower maintained with the Administrative Agent. The Administrative Agent agrees to provide
timely notice to Borrower of any automatic deduction made pursuant to
this 

Section 2.05(d).




     2.06 Termination or Reduction of Commitments. (a) The Company may, upon notice to
the Administrative Agent, terminate the Revolving Credit Facility, the Letter of Credit Sublimit or
the Swing Line Sublimit, or from time to time permanently reduce the Revolving Credit Facility, the
Letter of Credit Sublimit or the Swing Line Sublimit; provided that (i) any such notice
shall be received by the Administrative Agent not later than 11:00 a.m. three Business Days prior
to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Company shall
not terminate or reduce the Revolving Credit Facility if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed the
Revolving Credit Facility, and (iv) if, after giving effect to any reduction of the Revolving
Credit Facility, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Revolving Credit Facility, such Sublimit shall be automatically reduced by the amount of such
excess. All fees accrued until the effective date of any termination of the Revolving Credit
Facility shall be paid on the effective date of such termination. In addition, the aggregate Term
Loan Commitments shall be automatically and permanently reduced to zero on the date of the Term
Loan Borrowing.



          (b) The Administrative Agent will promptly notify the Lenders of any notice and of any
termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit or the Revolving
Credit Commitment under this Section 2.06. Upon any reduction of the Revolving Credit
Commitments, the Revolving Credit Commitment of each Revolving Credit Lender shall be reduced by
such Lender’s Applicable Revolving Credit Percentage of such reduction amount.




     2.07 Repayment of Loans. (a) Term Loans. The applicable Borrowers shall
make scheduled repayment of the aggregate outstanding principal amount, if any, of all Term Loans
semi-annually on the last day of each June and December occurring during each period set forth
below in an aggregate amount for such period equal to the percentage set forth below opposite such
period (or opposite such date) of the aggregate principal amount of Term Loans funded as of
September 30, 2007:



	 	 	 
	Date	 	Percentage
	July 1, 2007 through

(and including) June 30, 2008
	 	5%
	 	 	 
	July 1, 2008 through

(and including) June 30, 2009
	 	10%
	 	 	 
	July 1, 2009 through

(and including) June 30, 2010
	 	20%
	 	 	 
	July; 1, 2010 through

(and including) June 30, 2011
	 	25%
	 	 	 
	July 1, 2011 through

(and including) the Maturity Date
	 	40%






50









 





provided that the final principal repayment installment of the Term Loans shall be repaid
on the Maturity Date and in any event shall be in an amount equal to the aggregate principal amount
of all Term Loans outstanding on such date.




          (b) Revolving Credit Loans. Each Borrower shall repay to the Revolving Credit Lenders
on the Maturity Date the aggregate principal amount of all Revolving Credit Loans made to such
Borrower outstanding on such date.




          (c) Swing Line Loans. The Company shall repay each Swing Line Loan on demand by the
Swing Line Lender and, in any event, on the Maturity Date.




     2.08 Interest. (a) Subject to the provisions of Section 2.08(b), (i) each
LIBOR Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof
for each Interest Period at a rate per annum equal to the LIBOR Rate for such Interest Period plus
the Applicable Rate for such Facility; (ii) each Base Rate Loan under a Facility shall bear
interest on the outstanding principal amount thereof from the applicable borrowing date at a rate
per annum equal to the Base Rate plus the Applicable Rate for such Facility; and (iii) each
Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for the
Revolving Credit Facility.




     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable Laws.




          (ii) If any amount (other than principal of any Loan) payable by any Borrower under
any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise,
then upon the request of the Required Lenders, such amount shall thereafter bear interest at
a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.




          (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws; provided that the Default Rate shall only
apply so long as the applicable Event of Default is continuing and shall not apply following
the cure or waiver of such Event of Default.




          (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



          (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.

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     2.09 Fees. In addition to certain fees described in Sections 2.03(i) and
(j):




     (a) Revolving Commitment Fee. Each Borrower shall pay to the Administrative
Agent for the account of each Revolving Credit Lender in accordance with its Applicable
Revolving Credit Percentage, a commitment fee in Dollars equal to the Applicable Rate
times the actual daily amount by which the Revolving Credit Facility exceeds the sum
of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount of
L/C Obligations. The commitment fee shall accrue at all times during the Availability
Period, including at any time during which one or more of the conditions in Article
IV is not met, and shall be due and payable quarterly in arrears on each Quarterly
Payment Date, commencing with the first such date to occur after the Closing Date, and on
the last day of the Availability Period. The commitment fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.




     (b) [Intentionally Omitted.]




     (c) Other Fees. (i) The Company shall pay to the Arranger and the
Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.




          (ii) Each Borrower shall pay to the Lenders, in Dollars, such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by
KeyBank’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest shall be made on the basis of
a 360-day year and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year), or in the case of interest in respect
of Loans denominated in Yen as to which market practice differs from the foregoing, in accordance
with such market practice. Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid; provided that any Loan that is repaid on the same day on which it is made
shall, subject to Section 2.12(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.



     2.11 Evidence of Debt. (a) The Credit Extensions made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure
to so record or any error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of
any conflict between the accounts and records maintained by any Lender and the accounts and records
of the Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender
to a Borrower made through the Administrative Agent, such Borrower shall execute and deliver to
such Lender (through the Administrative Agent) a



52









 






Note, which shall evidence such Lender’s Loans to
such Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note
and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and
payments with respect thereto.




          (b) In addition to the accounts and records referred to in Section 2.11(a), each
Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and records maintained by
the Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.




     2.12 Payments Generally; Administrative Agent’s Clawback. (a) General. All
payments to be made by the Borrowers shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and
except with respect to principal of and interest on Loans denominated in Yen, all payments by the
Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars
and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise
expressly provided herein, all payments by the Borrowers hereunder with respect to principal and
interest on Loans denominated in Yen shall be made to the Administrative Agent, for the account of
the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s
Office in Yen and in Same Day Funds not later than the Applicable Time specified by the
Administrative Agent on the dates specified herein. Without limiting the generality of the
foregoing, the Administrative Agent may require that any payments due under this Agreement be made
in the United States. If, for any reason, any Borrower is prohibited by any Law from making any
required payment hereunder in Yen, such Borrower shall make such payment in Dollars in the Dollar
Equivalent of the Yen payment amount. The Administrative Agent will promptly distribute to each
Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by the Administrative Agent (i) after 2:00 p.m., in the case
of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in
the case of payments in Yen, shall in each case be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. If any payment to be made by any
Borrower shall come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.



          (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of LIBOR Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00
noon on the date of such 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 Section 2.02 (or, in the case
of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance
with and at the time required by Section 2.02) and may, in reliance upon such assumption,
make available to the applicable Borrower 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 applicable Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for
each day from and including the date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be
made by such Lender, the Overnight Rate, plus any

53









 








administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the
case of a payment to be made by such Borrower, the interest rate applicable to Base Rate Loans. If
such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of
such interest paid by such Borrower for such period. If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such
Lender’s Loan included in such Borrowing. Any payment by such Borrower shall be without prejudice
to any claim such Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.




          (ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that such Borrower will not make such payment, the Administrative Agent may assume that
such Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due.
In such event, if such Borrower has not in fact made such payment, then each of the Lenders or the
L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the L/C Issuer, in Same Day Funds 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 Administrative Agent, at the Overnight Rate.




     A notice of the Administrative Agent to any Lender or the Company with respect to any amount
owing under this clause (b) shall be conclusive, absent manifest error.



          (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender to any Borrower as provided in
the foregoing provisions of this Article II, and such funds are not made available to such
Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.




          (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Term Loans and Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line
Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation or to make any payment under
Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the failure
of any other Lender to so make its Loan, to purchase its participation or to make its payment under
Section 10.04(c).




          (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.




          (f) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first, toward payment
of 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, toward
payment of

54









 








principal and L/C Borrowings then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.




     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any
of the Facilities due and payable to such Lender hereunder and under the other Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the
Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the
other Loan Documents at such time) of payments on account of the Obligations in respect of the
Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time
obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities
owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate
amount of the Obligations in respect of the Facilities owing (but not due and payable) to all
Lenders hereunder and under the other Loan Documents at such time) of payment on account of the
Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder
and under the other Loan Documents at such time obtained by all of the Lenders at such time, then
the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such
fact, and (b) purchase (for cash at
face value) participations in the Loans and subparticipations in L/C Obligations and Swing
Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of Obligations in respect of the Facilities then due and payable to the Lenders or
owing (but not due and payable) to the Lenders, as the case may be, provided that:




     (i) if any such participations or subparticipations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (A) any
payment made by a Borrower pursuant to and in accordance with the express terms of
this Agreement or (B) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or subparticipations in
L/C Obligations or Swing Line Loans to any assignee or participant, other than to
the Company or any Subsidiary thereof (as to which the provisions of this Section
shall apply).



     Each Borrower 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 such Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Borrower in the amount
of such participation.



     2.14 Designated Borrowers; Relationship among Borrowers. (a) The Company may at any
time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or
such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate
any additional Subsidiary Guarantor (an “Applicant Borrower”) as a Designated Borrower to
receive Revolving Credit Loans hereunder by delivering to the Administrative Agent (which shall
promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in
substantially the form of Exhibit H (a “Designated Borrower Request and Assumption
Agreement”). The parties hereto acknowledge and agree that prior to



55









 




any Applicant Borrower
becoming entitled to utilize the credit facilities provided for herein the Administrative Agent and
the Revolving Credit Lenders shall have received such supporting resolutions, incumbency
certificates, opinions of counsel and other documents or information, in form, content and scope
reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent
or the Required Revolving Lenders in their sole discretion, and Notes signed by such new Borrowers
to the extent any Revolving Credit Lenders so require. If the Administrative Agent and the Required
Revolving Lenders agree that an Applicant Borrower shall be entitled to receive Revolving Credit
Loans hereunder, then promptly following receipt of all such requested resolutions, incumbency
certificates, opinions of counsel and other documents or information, the Administrative Agent
shall send a notice in substantially the form of Exhibit I (a “Designated Borrower
Notice”) to the Company and the Revolving Credit Lenders specifying the effective date upon
which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof, whereupon
each of the Revolving Credit Lenders agrees to permit such Designated Borrower to receive Loans
hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such
Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided
that no Committed Loan Notice or Letter of Credit Application may be submitted by or on behalf
of such Designated Borrower until the date five Business Days after such effective date; and
provided further that, effective as of the date hereof, the Required Revolving Lenders
agree that ASI may become a “Designated Borrower” pursuant hereto
(subject to satisfaction of Section 6.13 and the conditions set forth in this
Section 2.14) without any requirement of further written consent from the Required
Revolving Lenders.




          (b) The Obligations of the Company shall not be joint or several with AJI, ASI or any
Designated Borrower that is a Foreign Subsidiary, but shall be joint and several with any
Designated Borrower that is a US Subsidiary. The Obligations of AJI, ASI and all Designated
Borrowers that are Foreign Subsidiaries shall be joint and several in nature among AJI, ASI, all
Designated Borrowers and the Company.




          (c) Each Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant to this
Section 2.14 hereby irrevocably appoints the Company as its agent for all purposes relevant
to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of
notices, (ii) the execution and delivery of all documents, instruments and certificates
contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any
Loans made by the Lenders, to any such Designated Borrower hereunder. Any acknowledgment, consent,
direction, certification or other action which might otherwise be valid or effective only if given
or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given
or taken only by the Company, whether or not any such other Borrower joins therein. Any notice,
demand, consent, acknowledgement, direction, certification or other communication delivered to the
Company in accordance with the terms of this Agreement shall be deemed to have been delivered to
each Designated Borrower.




          (d) The Company may from time to time, upon not less than 15 Business Days’ notice from the
Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative
Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided that
there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by
such Designated Borrower on account of any Loans made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of any such termination of
a Designated Borrower’s status.

56









 









ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes. (a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the respective Borrowers hereunder or under any other Loan Document
shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or
Other Taxes, provided that if the applicable Borrower shall be required by applicable law
to deduct any Indemnified Taxes (including any 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, any
Lender or the L/C Issuer, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.



          (b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of
clause (a) above, each Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law. The Administrative Agent and each Lender
agrees to comply with Section 3.01(e) with respect to delivery of forms and documents to
establish each Lender’s status for withholding tax purposes and agrees to comply with Section
 3.06 with respect to additional amounts paid by any Borrower to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01.




          (c) Indemnification by the Borrowers. Each Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after 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, such Lender or the L/C Issuer, as the case may be, 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 a
Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.




          (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower shall deliver to
the Administrative Agent 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 the Administrative Agent.




          (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a Borrower is resident for
tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Company or the Administrative Agent, 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 of withholding. In addition, any Lender, if requested by the Company or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Company or the Administrative Agent as will enable the Company or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.

57









 









     Without limiting the generality of the foregoing, in the event that a Borrower is resident for
tax purposes in the United States, any Foreign Lender shall deliver to the Company and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Company or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a
party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, (A) a certificate to the
effect that such Foreign Lender is not (1) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the applicable Borrower
within the meaning of section 881(c)(3)(B) of the Code, or (3) a
“controlled foreign corporation” described in section 881(c)(3)(C) of the Code
and (B) duly completed copies of Internal Revenue Service Form W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
applicable law to permit the Company to determine the withholding or deduction
required to be made.



     Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for US withholding tax purposes, each Lender
agrees promptly to deliver to the Administrative Agent or the Company, as the Administrative Agent
or the Company shall reasonably request, on or prior to the Closing Date, and in a timely fashion
thereafter, such other documents and forms required by any relevant taxing authorities under the
Laws of any other jurisdiction, duly executed and completed by such Lender, as are required under
such Laws to confirm such Lender’s entitlement to any available exemption from, or reduction of,
applicable withholding taxes in respect of all payments to be made to such Lender outside of the US
by the Borrowers pursuant to this Agreement or otherwise to establish such Lender’s status for
withholding tax purposes in such other jurisdiction. Each Lender shall promptly (i) notify the
Administrative Agent of any change in circumstances which would modify or render invalid any such
claimed exemption or reduction, and (ii) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any such
jurisdiction that any Borrower make any deduction or withholding for taxes from amounts payable to
such Lender. Additionally, each of the Borrowers shall promptly deliver to the Administrative Agent
or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to
the Closing Date, and in a timely fashion thereafter, such documents and forms required by any
relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by such
Borrower, as are required to be furnished by such Lender or the Administrative Agent under such
Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or Other
Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.



          (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any Taxes or

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Other
Taxes as to which it has been indemnified by any Borrower or with respect to which any Borrower has
paid additional amounts pursuant to this Section, it shall pay to such Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as
the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Borrower, upon the request of the
Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to such
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This clause shall not be construed to require the Administrative Agent, any
Lender or the L/C Issuer to make available its tax returns (or any other information relating to
its taxes that it deems confidential) to any Borrower or any other Person.




     3.02 Illegality. Subject to Section 3.06 below to the extent applicable, if any Lender reasonably
determines that any Law has made it unlawful, or that any Governmental Authority has asserted that
it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund LIBOR
Rate Loans (whether denominated in Dollars or Yen), or to determine or charge interest rates based
upon the LIBOR Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, Dollars or Yen in the
applicable interbank market, then, on notice thereof by such Lender to the Company through the
Administrative Agent, any obligation of such Lender to make or continue LIBOR Rate Loans in the
affected currency or currencies or, in the case of LIBOR Rate Loans in Dollars, to convert Base
Rate Loans to LIBOR Rate Loans shall be suspended until such Lender notifies the Administrative
Agent and the Company that the circumstances giving rise to such determination no longer exist.
Upon receipt of such notice, the Borrowers shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable and such Loans are denominated in Dollars, convert
all LIBOR Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such LIBOR Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Rate Loans.
Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount
so prepaid or converted.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any
reason in connection with any request for a LIBOR Rate Loan or a conversion to or continuation
thereof that (a) deposits (whether in Dollars or Yen) are not being offered to banks in the
applicable offshore interbank market for such currency for the applicable amount and Interest
Period of such LIBOR Rate Loan, (b) adequate and reasonable means do not exist for determining the
LIBOR Rate for any requested Interest Period with respect to a proposed LIBOR Rate Loan (whether
denominated in Dollars or Yen), or (c) the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Loan, the Administrative Agent will promptly so notify the Company and each
Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR Rate Loans in the
affected currency or currencies shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Company
may revoke any pending request for a Borrowing of, conversion to or continuation of LIBOR Rate
Loans in the affected currency or currencies or, failing that, will be deemed to have converted
such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.



     3.04 Increased Costs; Reserves on LIBOR Rate Loans (a) Increased Costs
Generally. If any Change in Law shall:



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     (i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement contemplated by Section 3.04(e)) or the L/C Issuer;




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any participation in a Letter
of Credit or any LIBOR Rate Loan made by it, or change the basis of taxation of
payments to such Lender or the L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 3.01 and the imposition
of, or any change in the rate of, any Excluded Tax payable by such Lender or
the L/C Issuer); or




     (iii) impose on any Lender or the L/C Issuer or the London interbank market any
other condition, cost or expense affecting this Agreement or LIBOR Rate Loans made
by such Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any LIBOR Rate Loan (or of maintaining its obligation to make any such Loan), or to
increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer, the applicable Borrower will pay to such Lender or the L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case
may be, for such additional costs incurred or reduction suffered.




          (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the Company will pay (or cause the applicable
Designated Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C
Issuer’s holding company for any such reduction suffered.




          (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in clause (a) or (b) of this
Section and delivered to the Company shall be conclusive absent manifest error. The applicable
Borrower shall pay (or cause the applicable Designated Borrower to pay) such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.




          (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to
demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,

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provided
that no Borrower shall be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Company of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).




          (e) Additional Reserve Requirements. The applicable Borrower shall pay (or cause the
applicable Designated Borrower to pay) to each Lender, (i) as long as such Lender
shall be required to maintain reserves with respect to liabilities or assets consisting of or
including LIBOR funds or deposits (currently known as “LIBOR liabilities”), additional interest on
the unpaid principal amount of each LIBOR Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), and (ii) as long as such Lender shall be required to comply
with any reserve ratio requirement or analogous requirement of any other central banking or
financial regulatory authority imposed in respect of the maintenance of the Commitments or the
funding of the LIBOR Rate Loans, such additional costs (expressed as a percentage per annum and
rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs
allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith,
which determination shall be conclusive), which in each case shall be due and payable on each date
on which interest is payable on such Loan, provided the Company shall have received at
least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest
or costs from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest
Payment Date, such additional interest or costs shall be due and payable 10 days from receipt of
such notice.




     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Company shall promptly compensate (or cause the
applicable Designated Borrower to compensate) such Lender for and hold such Lender harmless from
any actual loss, cost or expense incurred by it as a result of:




     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);




     (b) any failure by any Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on
the date or in the amount notified by the Company or the applicable Designated Borrower;




     (c) any failure by any Borrower to make payment of any Loan or drawing under any Letter
of Credit (or interest due thereon) denominated in Yen on its scheduled due date or any
payment thereof in a different currency; or




     (d) any assignment of a LIBOR Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Company pursuant to Section
10.13;


including any loss of anticipated profits, any foreign exchange losses and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain such Loan from
fees payable to terminate the deposits from which such funds were obtained or from the performance
of any foreign exchange contract. The Company shall also pay (or cause the

61









 








applicable Designated
Borrower to pay) any customary administrative fees charged by such Lender in connection with the
foregoing.



For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower)
to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each
LIBOR Rate Loan made by it at the LIBOR Rate for such Loan by a matching deposit or other borrowing
in the offshore interbank market for such currency for a comparable amount and for a comparable
period, whether or not such LIBOR Rate Loan was in fact so funded.




     3.06 Mitigation Obligations; Replacement of Lenders. (a) Designation of a
Different Lending Office. If any Lender requests compensation under Section 3.04, or
any Borrower is required to pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 3.01, or if any Lender gives (or would be
required to give) a notice pursuant to Section 3.02, 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 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, 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 (or to cause the
applicable Designated Borrower to pay) all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.



          (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Company
may replace such Lender in accordance with Section 10.13.




     3.07 Survival. All of the Borrowers’ obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and
each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent (other than those conditions expressly provided for in Section
6.24):




     (a) The Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing
Date (or, in the case of certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance satisfactory to the Administrative Agent:




     (i) executed counterparts of this Agreement, sufficient in number for
distribution to the Administrative Agent, each Lender and the Company;




     (ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;



62









 






     (iii) each of the Company Guaranty (duly executed by the Company), the Japanese
Guaranty (duly executed by AJI and ASI), the Taiwanese Guaranty (duly executed by
ATT and AST); and the ASI Subsidiary Guaranty (duly executed by ATT, AST and ASAI);




     (iv) each of the US Security Agreement (duly executed by the Company, the US
Subsidiary of ASI, AJI and ASI), the AJI Japanese Security Agreement (duly executed
by AJI), the ATI Japanese Security Agreement (duly executed by the Company), the ASI
Japanese Security Agreement (duly executed by ASI), the ATI Japanese Pledge
Agreement (duly executed by the Company), and the AJI Japanese Pledge Agreement
(duly executed by AJI), together with:




     (A) certificates representing the Pledged Equity referred to therein,
accompanied by undated stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank,




     (B) copies of proper financing statements or other filing documents,
duly filed on or before the Closing Date under the Uniform Commercial Code
(or similar legal or filing regime) of all jurisdictions necessary or
desirable in order to perfect the Liens (that can be perfected by filing)
created under each Security Agreement, covering the Collateral described in
such Security Agreement,




     (C) completed requests for information, dated on or before the Closing
Date, listing all effective financing statements (or similar filings) filed
in the jurisdictions referred to in clause (B) above that name any
Loan Party as debtor, together with copies of such other financing
statements to the extent that requests for information are recognized in
such jurisdictions,




     (D) account control agreements (or similar agreements) duly executed by
the appropriate parties with respect to the Borrower Accounts, and




     (E) evidence of the completion of all other actions, recordings and
filings of or with respect to each Security Agreement necessary or desirable
in order to perfect the Liens created thereby (including receipt of duly
executed payoff letters, UCC-3 (or similar termination filings) termination
statements and landlords’ and bailees’ waiver and consent agreements);




     (v) an access agreement, in form and substance satisfactory to the
Administrative Agent, executed by each of the lessors of the leased real properties
listed in the first row of item 1 on Schedule 5.08(d)(i);




     (vi) IP Security Agreements, each dated as of the Closing Date, duly executed
and delivered by each Loan Party that has delivered a Security Agreement and owns or
has applied for any patents, copyrights and/or trademarks, together with (A)
evidence that all action necessary or desirable in order to perfect the Liens
created under the Security Agreements and the IP Security Agreements has been taken
and (B) completed requests for information, dated on or before the Closing Date,
listing all effective prior Liens on the collateral referred to in the IP Security
Agreements, together with evidence of such prior Liens;



63









 






     (vii) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Loan Party necessary or as
the Administrative Agent may require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party or is to be a party;




     (viii) such documents and certifications necessary or as the Administrative
Agent may reasonably require to evidence that each Loan Party is duly organized or
formed, and that each of the Company and each other Borrower and each Subsidiary
Guarantor is validly existing, in good standing and qualified to engage in business
in each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification;




     (ix) an opinion of Baker & McKenzie LLP, US counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, in form and substance
satisfactory to the Administrative Agent and the Required Lenders;




     (x) an opinion of Baker & McKenzie LLP, Japanese counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, in form and substance
satisfactory to the Administrative Agent and the Required Lenders;




     (xi) an opinion of Baker & McKenzie LLP, Taiwanese counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, in form and substance
satisfactory to the Administrative Agent and the Required Lenders,




     (xii) a Closing Date Certificate, dated as of the Closing Date, in which
certificate a Responsible Officer of each Loan Party shall certify that (A) the
conditions specified in Article IV have been satisfied, (B) there has been
no event or circumstance since the date of the Audited Financial Statements that has
had or could be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect and (C) the statements made therein shall be
deemed to be true and correct representations and warranties of such Loan Parties as
of such date, and, at the time such certificate is delivered, such statements shall
in fact be true and correct. All documents and agreements required to be appended to
the Closing Date Certificate in accordance therewith shall be in form and substance
satisfactory to the Administrative Agent, shall have been executed and delivered by
the requisite parties, and shall be in full force and effect;




     (xiii) a certificate attesting to the Solvency of each Loan Party before and
after giving effect to the Transaction, from the chief financial officer of the
Company, in substantially the form of Exhibit K;




     (xiv) evidence that all insurance required to be maintained pursuant to the
Loan Documents has been obtained and is in effect, together with the certificates of
insurance, naming the Administrative Agent, on behalf of the Lenders, as an
additional insured or loss payee, as the case may be, under all insurance policies
maintained with respect to the assets and properties of the Loan Parties that
constitutes Collateral;




     (xv) a duly completed Compliance Certificate based on projections as of the
last day of the fiscal quarter of the Company ended June 30, 2007, signed by chief
executive officer, chief financial officer, treasurer or controller of the



64









 







Company,
evidencing projected pro forma compliance with Section 7.11 as of June 30,
2007;




     (xvi) evidence that all Indebtedness under the Existing Credit Agreement, and
all other Existing Indebtedness (other than Continuing Debt, the
Subordinated Notes, and the letters of credit issued by Bank of America, N.A.
under the Existing Credit Agreement, to the extent permitted under Section
7.02), together with all interest, all prepayment premiums and other amounts due
and payable with respect thereto, has been, or concurrently with the Closing Date is
being, paid in full and the commitments in respect of such Indebtedness have been
terminated and all Liens securing obligations under such Indebtedness have been, or
concurrently with the Closing Date are being, released;




     (xvii) each Borrower shall establish with the Administrative Agent a deposit
account (as such term is defined in Article 9 of the UCC) into which such Borrower
shall deposit sufficient funds to comply with Section 2.05(d);




     (xviii) certified copies of (A) the Audited Financial Statements, (B) unaudited
consolidated and consolidating balance sheets of the Company and its Subsidiaries
dated December 31, 2006, and the related consolidated and consolidating statements
of income or operations, shareholders’ equity and cash flows for the fiscal quarter
ended on that date, and (C) the consolidated and consolidating forecasted balance
sheet and statements of income and cash flows of the Company and its Subsidiaries
for the three year period from the Closing Date;




     (xix) the Escrow Agreement duly executed by the appropriate parties in form and
substance satisfactory to Administrative Agent with respect to an account into which
the Borrowers shall deposit sufficient funds to comply with Section 6.24(a); and




     (xx) such other assurances, certificates, documents, consents or opinions as
the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender
reasonably may require.




     (b) (i) All fees required to be paid to the Administrative Agent and the Arranger on or
before the Closing Date and all fees, charges and disbursements of counsel to the
Administrative Agent (directly to such counsel if requested by the Administrative Agent) to
the extent invoiced prior to or on the Closing Date shall have been paid and (ii) all fees
required to be paid to the Lenders on or before the Closing Date shall have been paid.



     Without limiting the generality of the provisions of Section 9.04, for purposes of determining
compliance with the conditions specified in this Section 4.01, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.



     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any
Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of
Loans to the other Type, or a continuation of LIBOR Rate Loans) is subject to the following
conditions precedent:




65










 






     (a) The representations and warranties of (i) the Borrowers contained in
Article V and (ii) each Loan Party contained in each other Loan Document, or which
are contained in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit Extension, except
to the extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct as of such earlier date, and except that
for purposes of this Section 4.02, the representations and warranties contained in
Sections 5.05 (a) and (b) shall be deemed to refer to the most recent
statements furnished pursuant to Section 6.01(a) and (b), respectively.




     (b) No Default shall exist, or would result from such proposed Credit Extension or from
the application of the proceeds thereof.




     (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with the
requirements hereof.




     (d) The Administrative Agent shall have received such other approvals, opinions or
documents as any Lender through the Administrative Agent may reasonably request.




     (e) If the applicable Borrower is a Designated Borrower, then the conditions of
Section 2.14 to the designation of such Borrower as a Designated Borrower shall have
been met to the satisfaction of the Administrative Agent.




     (f) In the case of a Credit Extension to be denominated in Yen, there shall not have
occurred any material adverse change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which in the reasonable
opinion of the Administrative Agent, the Required Term Lenders (in the case of any Term
Loans to be denominated in Yen), the Required Revolving Lenders (in the case of any
Revolving Credit Loans to be denominated in Yen) or the L/C Issuer (in the case of any
Letter of Credit to be denominated in Yen) would make it impracticable for such Credit
Extension to be denominated in Yen.



     Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Loans to the other Type or a continuation of LIBOR Rate Loans) submitted under this
Agreement shall be deemed to be a representation and warranty by the Company that the conditions
specified in Sections 4.02(a) and (b) applicable thereto have been satisfied on and
as of the date of the applicable Credit Extension.



ARTICLE V

REPRESENTATIONS AND WARRANTIES




     Each Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof
(a) is duly organized or formed, validly existing and, as applicable, in good standing under the
Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and
authority and all requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party and consummate the Transaction,
and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws
of each jurisdiction where its ownership, lease or operation of properties or the conduct of its



66









 







business requires such qualification or license; except in each case referred to in clause (b)(i)
or (ii) to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is or is to be a party have been duly
authorized by all necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under, or require any payment to be
made under (i) any material Contractual Obligation to which such Person is a party or affecting
such Person or the properties of such Person or any of its Subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person
or its property is subject; or (c) violate any Law.



     5.03 Governmental Authorization; Other Consents. (a) No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any Governmental
Authority or any other Person is necessary or required in connection with (i) the execution,
delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other
Loan Document, or for the consummation of the Transaction, (ii) the grant by any Loan Party of the
Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of
the Liens created under the Collateral Documents (including, except as expressly permitted herein,
the first priority nature thereof) or (iv) the exercise by the Administrative Agent or any Lender
of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed
on Schedule 5.03, all of which have been duly obtained, taken, given or made and are in full force
and effect.



          (b) Under the Laws of the each US, foreign and local jurisdiction in which (x) a Borrower is
organized, (y) a Borrower incurs or assumes an Obligation or makes payment with respect to an
Obligation or (y) any Collateral is located, there is no requirement that the Administrative Agent,
in its capacity as mortgagee or secured party, or any of the Lenders qualify to do business in such
jurisdiction or comply with the requirement of any foreign lender statute or to pay any Tax in
order to carry out the transactions contemplated by, receive the benefits of, or enforce the
provisions of the Loan Documents or the documents provided for therein, nor will the Administrative
Agent or any of the Lenders be subject to any other type of taxation in such jurisdiction solely as
the result of the performance of such transactions or the enforcement of any rights or remedies
granted under any Loan Document.




     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan
Party that is party thereto in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights
generally or by equitable principles of general applicability



     5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event.



          (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of the Company and its Subsidiaries
as of the date thereof and their results of operations for the period covered thereby in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent,



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of the Company and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.



          (b) The unaudited consolidated and consolidating balance sheets of the Company and its
Subsidiaries delivered pursuant to Section 4.01 (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Company and its Subsidiaries as of
the date thereof and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments. Schedule 5.05(b) sets forth all material indebtedness and other
liabilities, direct or contingent, of the Company and its consolidated Subsidiaries as of the
Closing Date, including liabilities for taxes, material commitments and Indebtedness (collectively,
“Existing Indebtedness”).



          (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.



          (d) Other than Internal Control Events that have been publicly disclosed in the Company’s Form
10-K or Form 10-Q filings with the SEC or that are in existence on the Closing Date and described
on Schedule 5.05(d), to the best knowledge of the Company, no Internal Control Event exists
or has occurred since the date of the Audited Financial Statements that has resulted in or could
reasonably be expected to result in a misstatement in any material respect, in any financial
information delivered or to be delivered to the Administrative Agent or the Lenders, of (i)
covenant compliance calculations provided hereunder or (ii) the assets, liabilities, financial
condition or results of operations of the Company and its Subsidiaries on a consolidated basis.



          (e) The consolidated and consolidating forecasted balance sheet and statements of income and
cash flows of the Company and its Subsidiaries delivered pursuant to Section 4.01 or Section
6.01(c) were prepared in good faith on the basis of the assumptions stated therein, which
assumptions were fair in light of the conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the Company’s best estimate of its future
financial condition and performance.



          (f) All balance sheets, all statements of income and of cash flow and all other financial
information of the Company and its Subsidiaries to be furnished pursuant to Section 6.01
will for periods following the Closing Date be prepared in accordance with GAAP consistently
applied and will present fairly in all material respects the consolidated financial condition of
the Persons covered thereby as at the dates thereof and the results of their operations for the
periods then ended.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Company, threatened or contemplated, at law, in equity, in arbitration
or before any Governmental Authority, by or against the Company or any of its Subsidiaries or
against any of their properties or revenues that (a) purport to affect or pertain to this Agreement
or any other Loan Document, the consummation of the Transaction or any of the transactions
contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06, (the “Disclosed
Litigation”), either individually or in the aggregate, if determined adversely, could reasonably be
expected to have a Material Adverse Effect, and there has been no material adverse change in the
status, or financial effect on any Loan Party or any Subsidiary thereof, of the matters
described in Schedule 5.06.



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     5.07 Material Contracts. As of the Closing Date and each date on which applicable
supplemental reports are required to be delivered pursuant to Section 6.02(i), Schedule 5.07 sets
forth a complete and accurate list of all Material Contracts to which a Loan Party or any of the
Subsidiaries is party to, showing as of the date hereof the parties to such Material Contracts, the
dates such Material Contracts were entered into, the subject matter of such Material Contracts, the
aggregate consideration payable to or by the parties thereto and any other information useful to
determine the materiality of such Material Contract to the business or operations of the Loan Party
or Subsidiary party thereto. Neither any Loan Party nor any Subsidiary thereof is in default under
or with respect to, or a party to, any Material Contracts that could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. No default under any Material
Contract has occurred and is continuing or would result from the consummation of the Transactions.



     5.08 Ownership of Property; Liens; Investments. (a) Each Loan Party and each of its
Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its business, except for such
defects in title as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.



          (b) As of the Closing Date, Schedule 5.08(b) sets forth a complete and accurate list
of all Liens on the property or assets of each Loan Party and each of its Subsidiaries, showing as
of the date hereof the lienholder thereof, the principal amount of the obligations secured thereby
and the property or assets of such Loan Party or such Subsidiary subject thereto. The property of
each Loan Party and each of its Subsidiaries is subject to no Liens, other than Liens set forth on
Schedule 5.08, and as otherwise permitted by Section 7.01.



          (c) As of the Closing Date and each date on which applicable supplemental reports are required
to be delivered pursuant to Section 6.02(i), Schedule 5.08(c) sets forth a complete
and accurate list of all real property owned by each Loan Party and each of its Subsidiaries,
showing as of the date hereof the street address, county or other relevant jurisdiction, state,
record owner and book and fair value thereof. Each Loan Party and each of its Subsidiaries has
good, marketable and insurable fee simple title to the real property owned by such Loan Party or
such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan
Documents.




     (d) (i) As of the Closing Date and each date on which applicable supplemental reports
are required to be delivered pursuant to Section 6.02(i), Schedule
5.08(d)(i) sets forth a complete and accurate list of all leases of real property under
which any Loan Party or any Subsidiary of a Loan Party is the lessee, showing as of the date
hereof the street address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. Each such lease is the legal, valid and
binding obligation of the lessor thereof, enforceable in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally or by equitable principles of
general applicability. (ii) As of the Closing Date and each date on which applicable
supplemental reports are required to be delivered pursuant to Section 6.02(i),
Schedule 5.08(d)(ii) sets forth a complete and accurate list of all leases of real
property under which any Loan Party or any Subsidiary of a Loan Party, is the lessor,
showing as of the date hereof the street address, county or other relevant jurisdiction,
state, lessor, lessee, expiration date and annual rental cost thereof. Each such lease is
the legal, valid and binding obligation of the lessee thereof, enforceable in accordance
with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors’ rights generally or by equitable principles of
general applicability.



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          (e) As of the Closing Date and each date on which applicable supplemental reports are required
to be delivered pursuant to Section 6.02(i), Schedule 5.08(e) sets forth a complete
and accurate list of all Investments held by any Loan Party or any Subsidiary of a Loan Party on
the date hereof, showing as of the date hereof the amount, obligor or issuer and maturity, if any,
thereof.



          (f) As of the Closing Date and each date on which applicable supplemental reports are required
to be delivered pursuant to Section 6.02(i), Schedule 5.08(f) sets forth a complete
and accurate list of all Material Personal Property of the Company (other than with respect to the
Material Personal Property of the Company located in the US) and each Subsidiary, showing as of the
date hereof the owner of such Material Personal Property, the book value of such Material Personal
Property, the jurisdiction in which such Material Personal Property is registered and/or located
and any other information that is necessary to obtain a perfected security interest in such
Material Personal Property in each jurisdiction where it is registered and/or located.



          (g) As of the Closing Date and each date on which applicable supplemental reports are required
to be delivered pursuant to Section 6.02(i), Schedule 5.08(g) sets forth a complete
and accurate list of all Accounts of the Company and each of its Subsidiaries, showing the type of
each such Account, the financial institution in which each such Account is maintained, the then
average monthly balance of each such Account and which such Accounts are Excluded Accounts.



     5.09 Environmental Compliance. (a) Neither compliance with any applicable
Environmental Laws by the Loan Parties and their respective Subsidiaries, nor any claims alleging
potential liability under, or violation of, any Environmental Law with respect to the Loan Parties
and their respective Subsidiaries, could, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.



          (b) None of the properties currently or formerly owned or operated by any Loan Party or any of
its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; to the best of the Company’s
knowledge, there are no and never have been any underground or above-ground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being
or have been treated, stored or disposed on any property currently or formerly owned or operated by
any Loan Party or any of its Subsidiaries; to the best of the Company’s knowledge, there is no
asbestos or asbestos-containing material on any property currently owned or operated by any Loan
Party or any of its Subsidiaries; and, to the best of the Company’s knowledge, Hazardous Materials
have not been released, discharged or disposed of on any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries, in a manner which could reasonably be
expected to result in a material liability to any Loan Party or any of its Subsidiaries.



          (c) Neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed,
either individually or together with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or threatened release, discharge
or disposal of Hazardous Materials at any site, location or operation, either voluntarily or
pursuant to the order of any Governmental Authority or the requirements of any Environmental Law;
and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries have been managed in a manner not reasonably expected to
result in material liability to any Loan Party or any of its Subsidiaries.



70









 





          (d) To the knowledge of any Loan Party, there is no liability arising under Environmental Law
that would materially interfere with the satisfaction of any Contractual Obligation owed to any
Loan Party or any of its Subsidiaries.



     5.10 Insurance. The properties of the Company and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Company, in such amounts,
with such deductibles and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the Company or the applicable
Subsidiary operates.



     5.11 Taxes. The Company and its Subsidiaries have filed all Federal, state and other
(foreign and US) material tax returns and reports required to be filed, and have paid all Federal,
state and other (foreign and US) material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate proceedings diligently conducted and
for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Company or any Subsidiary that would, if made, be reasonably expected to
have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any
tax sharing agreement with any third party.



     5.12 ERISA Compliance. (a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable determination letter
from the IRS or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Company, nothing has occurred which would
prevent, or cause the loss of, such qualification. The Company and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and no application for
a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.



          (b) There are no pending or, to the best knowledge of the Company, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.



          (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither the Company nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension
Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Company nor any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.



          (d) With respect to each scheme or arrangement mandated by a government other than the United
States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee
benefit plan maintained or contributed to by any Loan Party or any Subsidiary of any Loan Party
that is not subject to United States law (a “Foreign Plan”):




     (i) any employer and employee contributions required by law or by the terms of
any Foreign Government Scheme or Arrangement or any Foreign



71









 







Plan have been made, or,
if applicable, accrued, in accordance with normal accounting practices;




     (ii) except as disclosed in Schedule 5.12(d)(ii), the fair market value
of the assets of each funded Foreign Plan, the liability of each insurer for any
Foreign Plan funded through insurance or the book reserve established for any
Foreign Plan, together with any accrued contributions, is sufficient to procure or
provide for the accrued benefit obligations, as of the date hereof, with respect to
all current and former participants in such Foreign Plan according to the actuarial
assumptions and valuations most recently used to account for such obligations in
accordance with applicable generally accepted accounting principles; and




     (iii) each Foreign Plan required to be registered has been registered and has
been maintained in good standing with applicable regulatory authorities.



     5.13 Subsidiaries; Equity Interests; Loan Parties. No Loan Party has any Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding
Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable
(or equivalent thereof to the extent applicable in the jurisdiction in which Equity Interests are
issued) and are owned by a Loan Party (or other Person) in the amounts specified on Part (a) of
Schedule 5.13 free and clear of all Liens except those created under the Collateral Documents. No
Loan Party has any equity investments in any other corporation or entity other than those
specifically disclosed in Part(b) of Schedule 5.13. All of the outstanding Equity Interests in the
Company have been validly issued are fully paid and non-assessable and are owned by the Persons in
the amounts specified on Part (c) of Schedule 5.13 free and clear of all Liens except those created
under the Collateral Documents. Set forth on Part (d) of Schedule 5.13 is a complete and accurate
list of all Loan Parties, showing as of the Closing Date (as to each Loan Party) the jurisdiction
of its incorporation, the address of its principal place of business and its US taxpayer
identification number or, in the case of any non-US Loan Party that does not have a US taxpayer
identification number, its unique identification number issued to it by the jurisdiction of its
incorporation. The copy of the charter of each Loan Party and each amendment thereto provided
pursuant to Section 4.01(a (vii) is a true and correct copy of each such document, each of which is
valid and in full force and effect. No holder of Other AJI Equity Interests has the ability to
affect the rights or remedies of the Secured Parties under the Loan Documents.



     5.14 Margin Regulations; Investment Company Act. (a) No Borrower is engaged or will
engage, principally or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit
for the purpose of purchasing or carrying margin stock. Following the application of the proceeds
of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the
assets (either of the applicable Borrower only or of the Company and its Subsidiaries on a
consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any
restriction contained in any agreement or instrument between any Borrower and any Lender or any
Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be
margin stock.



          (b) None of the Company, any Person Controlling the Company, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of 1940.



     5.15 Disclosure. The Company has disclosed to the Administrative Agent and the
Lenders all agreements, instruments and corporate or other restrictions to which it or any of its
Subsidiaries or any other Loan Party is subject, and all other matters known to it, that,



72









 







individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect. No report, financial statement, certificate or other information furnished (whether in
writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by
other information so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that, with respect to projected financial
information, the Company represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.



     5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in
compliance in all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such instances in which
(a) such requirement of Law or order, writ, injunction or decree is being contested in good faith
by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



     5.17 Intellectual Property; Licenses, Etc. Each Loan Party and its Subsidiaries own,
or possess the right to use, all of the trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property rights (collectively,
“IP Rights”) that are reasonably necessary for the operation of their respective businesses and as
of the Closing Date and each date on which applicable supplemental reports are required to be
delivered pursuant to Section 6.02(i), Schedule 5.17 sets forth a complete and accurate list of all
such IP Rights owned or used by each Loan Party and each of its Subsidiaries. To the best
knowledge of the Company, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be employed, by any Loan
Party or any of its Subsidiaries infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or, to the best knowledge of the Company,
threatened, which, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.



     5.18 Solvency. Each Loan Party is, individually and together with its Subsidiaries on
a consolidated basis, Solvent.



     5.19 Casualty, Etc. Neither the businesses nor the properties of any Loan Party or
any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other
labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or
other casualty (whether or not covered by insurance) that, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.



     5.20 Labor Matters. There are no collective bargaining agreements or Multiemployer
Plans covering the employees of the Company or any of its Subsidiaries as of the Closing Date and
neither the Company nor any Subsidiary has suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last three years.



     5.21 Collateral Documents. The provisions of the Collateral Documents are effective
to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal,
valid and enforceable first priority Lien (subject (other than with respect to Liens on Equity
Interests of the Subsidiaries) to Liens permitted by Section 7.01) on all right, title and interest
of the respective Loan Parties in the Collateral described therein. Except for filings completed
prior to the Closing Date and as contemplated hereby and by the Collateral Documents and filings set



73









 







forth on Schedule 5.21 that will be made by the date set forth in such Schedule, no filing or
other action will be necessary to perfect or protect such Liens.



     5.22 Representations as to Foreign Obligors. Each of the Company and each Foreign
Obligor represents and warrants to the Administrative Agent and the Lenders that:




     (a) Such Foreign Obligor is subject to civil and commercial Laws with respect to its
obligations under this Agreement and the other Loan Documents to which it is a party
(collectively as to such Foreign Obligor, the “Applicable Foreign Obligor
Documents”), and the execution, delivery and performance by such Foreign Obligor of the
Applicable Foreign Obligor Documents constitute and will constitute private and commercial
acts and not public or governmental acts. Subject to applicable Debtor Relief Laws, neither
such Foreign Obligor nor any of its property has any immunity from jurisdiction of any court
or from any legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction
in which such Foreign Obligor is organized and existing in respect of its obligations under
the Applicable Foreign Obligor Documents.




     (b) The Applicable Foreign Obligor Documents are in proper legal form under the Laws of
the jurisdiction in which such Foreign Obligor is organized and existing for the enforcement
thereof against such Foreign Obligor under the Laws of such jurisdiction, and to ensure the
legality, validity, enforceability, priority or admissibility in evidence of the Applicable
Foreign Obligor Documents, except as provided under applicable Debtor Relief Laws. It is
not necessary to ensure the legality, validity, enforceability, priority or admissibility in
evidence of the Applicable Foreign Obligor Documents that the Applicable Foreign Obligor
Documents be filed, registered or recorded with, or executed or notarized before, any court
or other authority in the jurisdiction in which such Foreign Obligor is organized and
existing or that any registration charge or stamp or similar tax be paid on or in respect of
the Applicable Foreign Obligor Documents or any other document, except for (i) any such
filing, registration, recording, execution or notarization as has been made or is not
required to be made until the Applicable Foreign Obligor Document or any other document is
sought to be enforced and (ii) any charge or tax as has been timely paid.




     (c) There is no tax, levy, impost, duty, fee, assessment or other governmental charge,
or any deduction or withholding, imposed by any Governmental Authority in or of the
jurisdiction in which such Foreign Obligor is organized and existing either (i) on or by
virtue of the execution or delivery of the Applicable Foreign Obligor Documents or (ii) on
any payment to be made by such Foreign Obligor pursuant to the Applicable Foreign Obligor
Documents, except as has been disclosed on Schedule 5.22.




     (d) The execution, delivery and performance of the Applicable Foreign Obligor Documents
executed by such Foreign Obligor are, under applicable foreign exchange control regulations
of the jurisdiction in which such Foreign Obligor is organized and existing, not subject to
any notification or authorization except (i) such as have been made or obtained or (ii) such
as cannot be made or obtained until a later date (provided that any notification or
authorization described in clause (ii) shall be made or obtained as soon as is
reasonably practicable).



     5.23 Issuance of Subordinated Debt; Status of Obligations as Senior Indebtedness, etc.
The applicable Borrowers had the power and authority to incur the Subordinated Debt as
provided for under the Sub Debt Documents applicable thereto and has duly authorized, executed and
delivered the Sub Debt Documents applicable to such Subordinated Debt. The applicable Borrowers
have issued, pursuant to due authorization, the Subordinated Debt under the



74









 







applicable Sub Debt
Documents, and such Sub Debt Documents constitute the legal, valid and binding obligations of such
Borrowers enforceable against such Borrowers in accordance with their terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally and by principles of equity). The subordination provisions
of the Subordinated Debt contained in the Sub Debt Documents are enforceable against the holders of
the Subordinated Debt by the holder of any “Senior Indebtedness” or similar term referring to the
Obligations (as defined in the Sub Debt Documents). All Obligations, including those to pay
principal of and interest (including post-petition interest, whether or not allowed as a claim
under bankruptcy or similar laws) on the Loans and reimbursement obligations, and fees and expenses
in connection therewith, constitute “Senior Indebtedness” or similar term relating to the
Obligations (as defined in the Sub Debt Documents) and all such Obligations are entitled to the
benefits of the subordination created by the Sub Debt Documents. The Borrowers acknowledge that
the Administrative Agent, each Lender and each L/C Issuer is entering into this Agreement and is
extending its Commitments in reliance upon the subordination provisions of the Sub Debt Documents.



ARTICLE VI

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Company shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02 and 6.03) cause each Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in
form and detail satisfactory to the Administrative Agent and the Required Lenders:




     (a) as soon as available, but in any event within 100 days after the end of each fiscal
year of the Company (commencing with the fiscal year ended March 31, 2007), (i) a
consolidated and consolidating balance sheet of the Company and its Subsidiaries as at the
end of such fiscal year, and the related consolidated and consolidating statements of income
or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all in reasonable
detail and prepared in accordance with GAAP, such consolidated statements to be audited and
accompanied by (A) a report and opinion of a Registered Public Accounting Firm of nationally
recognized standing reasonably acceptable to the Required Lenders, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and applicable
Securities Laws and shall not be subject to any “going concern” or like qualification or
exception or any qualification or exception as to the scope of such audit or with respect to
the absence of any material misstatement and (B) an opinion of such Registered Public
Accounting Firm independently assessing the Company’s internal controls over financial
reporting in accordance with Item 308 of SEC Regulation S-K, PCAOB Auditing Standard No. 2,
and Section 404 of Sarbanes-Oxley expressing a conclusion that contains no statement that
there is a material weakness in such internal controls, except for such material weaknesses
as to which the Required Lenders do not object or as disclosed on Schedule 5.05(d) as of the
Closing Date, and such consolidating statements to be certified by the chief executive
officer, chief financial officer, treasurer or controller of the Company to the effect that such
statements are fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Company and its Subsidiaries and (ii) financial



75









 







statements of AJI and ASI prepared in compliance with the Company Law (Law No. 86 of 2005,
as amended) of Japan;




     (b) as soon as available, but in any event within 50 days after the end of each of the
first three fiscal quarters of each fiscal year of the Company (commencing with the fiscal
quarter ended June 30, 2007), a consolidated and consolidating balance sheet of the Company
and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated and
consolidating statements of income or operations, shareholders’ equity and cash flows for
such fiscal quarter and for the portion of the Company’s fiscal year then ended, setting
forth in each case in comparative form the figures for the corresponding fiscal quarter of
the previous fiscal year and the corresponding portion of the previous fiscal year, all in
reasonable detail, such consolidated statements to be certified by the chief executive
officer, chief financial officer, treasurer or controller of the Company as fairly
presenting the financial condition, results of operations, shareholders’ equity and cash
flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes and such consolidating statements to
be certified by the chief executive officer, chief financial officer, treasurer or
controller of the Company to the effect that such statements are fairly stated in all
material respects when considered in relation to the consolidated financial statements of
the Company and its Subsidiaries; and




     (c) as soon as available, but in any event at least 45 days following the end of each
fiscal year of the Company, an annual business plan and budget of the Company and its
Subsidiaries on a consolidated basis, including forecasts prepared by management of the
Company, in form satisfactory to the Administrative Agent and the Required Lenders, of
consolidated balance sheets and statements of income or operations and cash flows of the
Company and its Subsidiaries on a quarterly basis for the immediately following fiscal year.


As to any information contained in materials furnished pursuant to Section 6.02(d), the
Company shall not be separately required to furnish such information under Section 6.01(a)
or (b) above, but the foregoing shall not be in derogation of the obligation of the Company
to furnish the information and materials described in Sections 6.01(a) and (b)
above at the times specified therein.




     6.02 Certificates; Other Information. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:




     (a) concurrently with the delivery of the financial statements referred to in
Section 6.01(a), a certificate of the Registered Public Accounting Firm certifying
such financial statements and stating that in making the examination necessary therefor no
knowledge was obtained of any Default or, if any such Default shall exist, stating the
nature and status of such event;




     (b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by
the chief executive officer, chief financial officer, treasurer or controller of the
Company;




     (c) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of any Loan Party
by independent accountants in connection with the accounts or books of any Loan Party
or any of its Subsidiaries, or any audit of any of them;



76









 






     (d) (i) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the
Company, and copies of all annual, regular, periodic and special reports and registration
statements which the Company may file or be required to file with the SEC under Section 13
or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange,
and in any case not otherwise required to be delivered to the Administrative Agent pursuant
hereto and (ii) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), to the extent Form 10-K filings and/or Form 10-Q
filings corresponding with the dates of such financial statement have not been made with the
SEC prior to the delivery of such financial statements, drafts of such filings in form and
substance reasonably satisfactory to the Administrative Agent;




     (e) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section
6.02;




     (f) promptly, and in any event within five Business Days after receipt thereof by any
Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-US jurisdiction) concerning any
investigation or possible investigation or other formal inquiry by such agency regarding
financial or other operational results of any Loan Party or any Subsidiary thereof;




     (g) not later than five Business Days after receipt thereof by any Loan Party or any
Subsidiary thereof, copies of all notices, requests and other documents (including
amendments, waivers and other modifications) so received under or pursuant to the
Acquisition Agreement or any instrument, indenture, loan or credit or similar agreement
regarding or related to any breach or default by any party thereto or any other event that
could reasonably be expected to result in a material impairment of the value of the
interests or the rights of any Loan Party or otherwise have a Material Adverse Effect and,
from time to time upon request by the Administrative Agent, such information and reports
regarding the Acquisition Agreement and such instruments, indentures and loan and credit and
similar agreements as the Administrative Agent may reasonably request;




     (h) promptly after the assertion or occurrence thereof, notice of any action or
proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with
any Environmental Law or Environmental Permit that could (i) reasonably be expected to have
a Material Adverse Effect or (ii) cause any property described in the Mortgages to be
subject to any material restrictions on ownership, occupancy, use or transferability under
any Environmental Law;




     (i) as soon as available, but in any event within 45 days after the end of each fiscal
quarter of the Company, (i) a report supplementing Schedule 5.07, including an
identification of all Material Contracts, the parties to such Material Contracts, the dates
such Material Contracts were entered into, the subject matter of such Material Contracts,
the aggregate consideration payable to or by the parties thereto and any other information
useful to determine the materiality of such Material Contract to the business, condition
(financial or otherwise), operations, performance, properties or prospects of the Loan Party
or Subsidiary party thereto; (ii) a report supplementing Schedules 5.08(c), 5.08
 (d)(i) and 5.08(d)(ii), including an identification of all owned and
leased real property disposed of by the Company or any Subsidiary thereof during such fiscal
year, a list and description (including the street address, county or other relevant
jurisdiction, state,



77









 







record owner, book value thereof and, in the case of leases of
property, lessor, lessee, expiration date and annual rental cost thereof) of all real
property acquired or leased during such fiscal year and a description of such other changes
in the information included in such Schedules as may be necessary for such Schedules to be
accurate and complete; (iii) a report supplementing Schedule 5.08(f), including an
identification of the owner of such Material Personal Property, the book value of such
Material Personal Property, the jurisdiction in which such Material Personal Property is
registered and/or located and any other information that is necessary to obtain a perfected
security interest in such Material Personal Property in each jurisdiction where it is
registered and/or located; (iv) a report supplementing Schedule 5.08(g), including
identifying the type of each applicable Account, the financial institution in which each
such Account is maintained, the then average monthly balance of each such Account and which
such Accounts are Excluded Accounts; (v) a report supplementing Schedule 5.17,
setting forth (A) a list of registration numbers for all patents, trademarks, service marks,
trade names and copyrights awarded to the Company or any Subsidiary thereof during such
fiscal year and (B) a list of all patent applications, trademark applications, service mark
applications, trade name applications and copyright applications submitted by the Company or
any Subsidiary thereof during such fiscal year and the status of each such application; and
(vi) a report supplementing Schedules 5.08(e) and 5.13 containing a
description of all changes in the information included in such Schedules as may be necessary
for such Schedules to be accurate and complete, each such report to be signed by a
Responsible Officer of the Company and to be in a form reasonably satisfactory to the
Administrative Agent;




     (j) promptly, such additional information regarding the business, financial, legal or
corporate affairs of any Loan Party or any Subsidiary thereof, or compliance with the terms
of the Loan Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Company posts such documents, or provides a link thereto on
the Company’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website,
if any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided that: (i)
the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender
that requests the Company to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender and (ii) the Company shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every
instance the Company shall be required to provide paper copies of the Compliance Certificates
required by Section 6.02(b) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Company with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.



     Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of such Borrower hereunder (collectively, the “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the



78









 







“Platform”) and
(b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to any Borrower or its securities) (each, a
“Public Lender”). Each Borrower hereby agrees that it will use commercially reasonable
efforts to identify that portion of the Borrower Materials that may be distributed to the Public
Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page
thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such
Borrower Materials as not containing any material non-public information (although it may be
sensitive and proprietary) with respect to the Borrowers or their respective securities for
purposes of United States Federal and state securities laws (provided that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth in Section
10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the
Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public Investor.”



     6.03 Notices. Promptly notify the Administrative Agent and each Lender:




     (a) of the occurrence of (i) any Default or (ii) any matter that could reasonably be
expected to result in a Default;




     (b) of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) any dispute, litigation, investigation, proceeding or
suspension between any Loan Party or any Subsidiary thereof and any Governmental Authority;
or (ii) the commencement of, or any material development in, any litigation or proceeding
affecting any Loan Party or any Subsidiary thereof, including pursuant to any applicable
Environmental Laws;




     (c) of the occurrence of any ERISA Event or Foreign Plan Event;




     (d) of any material change in accounting policies or financial reporting practices by
any Loan Party or any Subsidiary thereof;




     (e) of the determination by the Registered Public Accounting Firm providing the opinion
required under Section 6.01(a)(ii) (in connection with its preparation of such
opinion) or the Company’s determination at any time of the occurrence or existence of any
Internal Control Event which could reasonably be expected to have a Material Adverse Effect;
and




     (f) of any announcement by Moody’s or S&P of any downgrade or possible downgrade in the
rating of any short-term or long-term obligations of any Loan Party.



     Each notice pursuant to this Section 6.03 (other than Section 6.03(f)) shall
be accompanied by a statement of a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Company has taken and proposes to take
with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan Document that have been
breached.



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and
payable, all its material obligations and liabilities, including (a) all tax liabilities,
assessments and governmental charges or levies upon it or its properties or assets, unless the same
are being



79









 







contested in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by the Company or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property, except those which
are being contested in good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP; and (c) all Indebtedness, as and when
due and payable, but subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force
and effect its (i) legal existence and (ii) good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable
action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business (as determined by the Company in its sole discretion), except
to the extent that failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to have a Material
Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its
material properties and equipment necessary in the operation of its business in good working order
and condition, ordinary wear and tear and obsolescence excepted; (b) make all necessary repairs
thereto and renewals and replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) use reasonable care in the
operation and maintenance of its facilities.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies not Affiliates of the Company, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons and providing for not less than 30 days’ prior notice
to the Administrative Agent of termination, lapse or cancellation of such insurance.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



     6.09 Books and Records. (a) Maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the Company or such
Subsidiary, as the case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Company or such Subsidiary, as the case may be.



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Company; provided that when an Event
of Default exists the Administrative Agent or any Lender (or any of their respective



80









 







‘representatives or independent contractors) may do any of the foregoing at the expense of the
Company at any time during normal business hours and without advance notice.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate
purposes, including but not limited to the repayment of the Subordinated Notes and refinancing of
the Indebtedness under the Existing Credit Agreement, not in contravention of any Law or of any
Loan Document.



     6.12 [Reserved]



     6.13 Covenant to Guarantee Obligations and Give Security. (a) Upon the formation or
acquisition of any new direct or indirect Subsidiary by any Loan Party, or upon the occurrence of
an Asset Trigger Event with respect to any Subsidiary at the Company’s expense:




     (i) within 10 Business Days after such formation, acquisition or Asset Trigger
Event, cause such Subsidiary, and cause each direct and indirect parent of such
Subsidiary (if it has not already done so), to duly execute and deliver to the
Administrative Agent a guaranty or guaranty supplement, in form and substance
satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’
obligations under the Loan Documents,




     (ii) within 10 Business Days after such formation, acquisition or Asset Trigger
Event, furnish to the Administrative Agent a description of the real and personal
properties of such Subsidiary, in detail satisfactory to the Administrative Agent,




     (iii) within 15 Business Days after such formation, acquisition or Asset
Trigger Event, cause such Subsidiary and each direct and indirect parent of such
Subsidiary (if it has not already done so) to duly execute and deliver to the
Administrative Agent (or a representative of the Administrative Agent or of the
Secured Parties designated by it or them) deeds of trust, trust deeds, deeds to
secure debt, mortgages, leasehold mortgages, leasehold deeds of trust, Security
Agreement supplements and other security and pledge agreements, as specified by and
in form and substance satisfactory to the Administrative Agent (including delivery
of all Pledged Equity in and of such Subsidiary, and other instruments of the type
specified in Section 4.01 (a)(iv)), securing payment of all the Obligations
of such Subsidiary or such parent, as the case may be, under the Loan Documents and
constituting Liens on all such real and personal properties,




     (iv) within 30 days after such formation, acquisition or Asset Trigger Event,
cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it
has not already done so) to take whatever action (including the recording of
mortgages, the filing of Uniform Commercial Code or other financing statements, the
giving of notices and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Administrative Agent to vest in the
Administrative Agent (or in any representative of the Administrative Agent or the
Secured Parties designated by it or them) valid and subsisting Liens on the
properties purported to be subject to the deeds of trust, trust deeds, deeds to
secure debt, mortgages, leasehold mortgages, leasehold deeds of trust, Security
Agreement supplements and security and pledge agreements delivered pursuant to this
Section 6.13, enforceable against all third parties in accordance with their
terms,



81









 






     (v) within 60 days after such formation, acquisition or Asset Trigger Event,
deliver to the Administrative Agent, upon the request of the Administrative Agent in
its reasonable discretion, a signed copy of a favorable opinion, addressed to the
Administrative Agent and the other Secured Parties, of counsel for the Loan Parties
acceptable to the Administrative Agent as to the matters contained in clauses
(i), (iii) and (iv) above, and as to such other matters as the
Administrative Agent may reasonably request, and




     (vi) as promptly as practicable after such formation, acquisition or Asset
Trigger Event, deliver, upon the request of the Administrative Agent in its
reasonable discretion, to the Administrative Agent with respect to each parcel of
real property owned or held by the entity that is the subject of such formation or
acquisition title reports, surveys and engineering, soils and other reports, and
environmental assessment reports, each in scope, form and substance reasonably
satisfactory to the Administrative Agent, provided that to the extent that any Loan
Party or any of its Subsidiaries shall have otherwise received any of the foregoing
items with respect to such real property, such items shall, promptly after the
receipt thereof, be delivered to the Administrative Agent;


provided that clauses (i) and (iii) through (vi) shall not apply to
any Subsidiary if such Subsidiary does not have assets in any country with an aggregate book value
greater than $1,000,000 (when taken together with the aggregate book value of the assets of any
Loan Party or any other Subsidiary in such country), unless and until such Subsidiary has assets in
a country with an aggregate book value greater than or equal to $1,000,000 (when taken together
with the aggregate book value of the assets of any Loan Party or any other Subsidiary in such
country), and in any case excluding Subsidiaries in Germany to the extent that the aggregate book
value of the assets of such Subsidiaries in Germany exceeds $1,000,000 solely due to temporary
intercompany arrangements with other Subsidiaries for periods of no longer than three months in
duration.




          (b) Upon the acquisition of any Material Property by any US Loan Party, if such property, in
the judgment of the Administrative Agent, shall not already be subject to a perfected first
priority (subject to Liens permitted under Section 7.02) security interest in favor of the
Administrative Agent for the benefit of the Secured Parties, then the Company shall, at the
Company’s expense:




     (i) within 10 Business Days after such acquisition, furnish to the
Administrative Agent a description of the property so acquired in detail
satisfactory to the Administrative Agent,




     (ii) within 15 Business Days after such acquisition, cause the applicable Loan
Party to duly execute and deliver to the Administrative Agent or a representative of
the Administrative Agent or of the Secured Parties designated by it or them) deeds
of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages,
leasehold deeds of trust, Security Agreement supplements and other security and
pledge agreements, as specified by and in form and substance satisfactory to the
Administrative Agent, securing payment of all the Obligations of the applicable Loan
Party under the Loan Documents and constituting Liens on all such properties,




     (iii) within 30 days after such acquisition, cause the applicable Loan Party to
take whatever action (including the recording of mortgages, the filing of Uniform
Commercial Code or other financing statements, the giving of notices and the
endorsement of notices on title documents) may be necessary or advisable



82









 







in the opinion of the Administrative Agent to vest in the Administrative Agent
(or in any representative of the Administrative Agent or of the Secured Parties
designated by it or them) valid and subsisting Liens on such property, enforceable
against all third parties,




     (iv) within 60 days after such acquisition, deliver to the Administrative
Agent, upon the request of the Administrative Agent in its reasonable discretion, a
signed copy of a favorable opinion, addressed to the Administrative Agent and the
other Secured Parties, of counsel for the Loan Parties acceptable to the
Administrative Agent as to the matters contained in clauses (ii) and
(iii) above and as to such other matters as the Administrative Agent may
reasonably request, and




     (v) as promptly as practicable after any acquisition of a real property,
deliver, upon the request of the Administrative Agent in its reasonable discretion,
to the Administrative Agent with respect to such real property title reports,
surveys and engineering, soils and other reports, and environmental assessment
reports, each in scope, form and substance satisfactory to the Administrative Agent,
provided that to the extent that any Loan Party or any of its Subsidiaries shall
have otherwise received any of the foregoing items with respect to such real
property, such items shall, promptly after the receipt thereof, be delivered to the
Administrative Agent.



             (c) Upon delivery of any report pursuant to Section 6.02(i) supplementing
Schedules 5.07, 5.08(c), 5.08(d)(i), 5.08(d)(ii), 5.08(e),
5.08(f) and/or 5.17 with respect to Material Property of Foreign Obligors, if such
Material Property, in the judgment of the Administrative Agent, shall not already be subject to a
perfected first priority (subject to Liens permitted under Section 7.02) security interest
in favor of the Administrative Agent (or a representative of the Administrative Agent or of the
Secured Parties designated by it or them) for the benefit of the Secured Parties and the secured
parties under the Japanese Term Loan Documents, then the Company shall, at the Company’s expense
within 30 days after the date such reports were required to be delivered pursuant to Section
6.02(i),




     (i) cause the applicable Foreign Obligor to duly execute and deliver to the
Administrative Agent (or a representative of the Administrative Agent or of the
Secured Parties designated by it or them) deeds of trust, trust deeds, deeds to
secure debt, mortgages, leasehold mortgages, leasehold deeds of trust, Security
Agreement supplements and other security and pledge agreements, as specified by and
in form and substance satisfactory to the Administrative Agent, securing payment of
all the Obligations of the applicable Foreign Obligor under the Loan Documents and
constituting Liens on all such properties,




     (ii) cause the applicable Foreign Obligor to take whatever action (including
the recording of mortgages, the filing of Uniform Commercial Code or other financing
statements, the giving of notices and the endorsement of notices on title documents)
may be necessary or advisable in the opinion of the Administrative Agent to vest in
the Administrative Agent (or in any representative of the Administrative Agent or of
the Secured Parties designated by it or them) valid and subsisting Liens on such
property, enforceable against all third parties,




     (iii) deliver to the Administrative Agent, upon the request of the
Administrative Agent in its reasonable discretion, a signed copy of a favorable
opinion, addressed to the Administrative Agent and the other Secured Parties, of



83









 







counsel for the Foreign Obligors acceptable to the Administrative Agent as to
the matters contained in clauses (ii) and (iii) above and as to such
other matters as the Administrative Agent may reasonably request, and




     (iv) deliver, upon the request of the Administrative Agent in its reasonable
discretion, to the Administrative Agent with respect to title reports, surveys and
engineering, soils and other reports, and environmental assessment reports, each in
scope, form and substance satisfactory to the Administrative Agent, provided that to
the extent that any Foreign Obligor or any of its Subsidiaries shall have otherwise
received any of the foregoing items, such items shall, promptly after the receipt
thereof, be delivered to the Administrative Agent;


provided that clauses (ii) through (iv) shall not apply to any Subsidiary
if such Subsidiary does not have assets in any country with an aggregate book value greater than
$1,000,000 (when taken together with the aggregate book value of the assets of any Loan Party or
any other Subsidiary in such country), unless and until such Subsidiary has assets in a country
with an aggregate book value greater than or equal to $1,000,000 (when taken together with the
aggregate book value of the assets of any Loan Party or any other Subsidiary in such country).




               (d) Upon the request of the Administrative Agent following the occurrence and during the
continuance of a Default, the Company shall, at the Company’s expense:




     (i) within 10 days after such request, furnish to the Administrative Agent a
description of the real and personal properties of the Loan Parties and their
respective Subsidiaries in detail satisfactory to the Administrative Agent,




     (ii) within 15 days after such request, duly execute and deliver, and cause
each Subsidiary of the Company (if it has not already done so) to duly execute and
deliver, to the Administrative Agent (or a representative of the Administrative
Agent or of the Secured Parties designated by it or them) deeds of trust, trust
deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of
trust, Security Agreement supplements and other security and pledge agreements, as
specified by and in form and substance satisfactory to the Administrative Agent
(including delivery of all Pledged Equity and Pledged Debt in and of such
Subsidiary, and other instruments of the type specified in Section
4.01(a)(iv)), securing payment of all the Obligations of such Subsidiary under
the Loan Documents and constituting Liens on all such properties




     (iii) within 30 days after such request, take, and cause each Loan Party and
each other Subsidiary of the Company to take, whatever action (including the
recording of mortgages, the filing of Uniform Commercial Code or other financing
statements, the giving of notices and the endorsement of notices on title documents)
may be necessary or advisable in the opinion of the Administrative Agent to vest in
the Administrative Agent (or in any representative of the Administrative Agent or
the Secured Lenders designated by it or them) valid and subsisting Liens on the
properties purported to be subject to the deeds of trust, trust deeds, deeds to
secure debt, mortgages, leasehold mortgages, leasehold deeds of trust, Security
Agreement Supplements, IP Security Agreement Supplements and security and pledge
agreements delivered pursuant to this Section 6.13 enforceable against all
third parties in accordance with their terms,




     (iv) within 60 days after such request, deliver to the Administrative Agent,
upon the request of the Administrative Agent in its sole discretion, a signed copy
of a favorable opinion, addressed to the Administrative Agent and the



84









 







other Secured Parties, of counsel for the Loan Parties acceptable to the
Administrative Agent as to the matters contained in clauses (ii) and
(iii) above, and as to such other matters as the Administrative Agent may
reasonably request, and




     (v) as promptly as practicable after such request, deliver, upon the request of
the Administrative Agent in its sole discretion, to the Administrative Agent with
respect to each parcel of real property owned or held by the Company and its
Subsidiaries, title reports, surveys and engineering, soils and other reports, and
environmental assessment reports, each in scope, form and substance satisfactory to
the Administrative Agent, provided that to the extent that any Loan Party or any of
its Subsidiaries shall have otherwise received any of the foregoing items with
respect to such real property, such items shall, promptly after the receipt thereof,
be delivered to the Administrative Agent.



               (e) At any time upon request of the Administrative Agent, promptly execute and deliver any and
all further instruments and documents and take all such other action as the Administrative Agent
reasonably determines necessary in obtaining the full benefits of, or (as applicable) in perfecting
and preserving the Liens of, such guaranties, deeds of trust, trust deeds, deeds to secure debt,
mortgages, leasehold mortgages, leasehold deeds of trust, Security Agreement supplements and other
security and pledge agreements.



     Notwithstanding the foregoing, nothing in this Agreement or in any of the Loan Documents shall
require a CFC or a Subsidiary that is held directly or indirectly by a CFC to deliver a guaranty or
grant a Lien on its assets if such action will (in the reasonable judgment of the Company) result
in material tax liability to the Company.



     6.14 Compliance with Environmental Laws. Comply, and cause all lessees and other
Persons operating or occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean
up all Hazardous Materials from any of its properties, in accordance with the requirements of all
Environmental Laws; provided that neither the Company nor any of its Subsidiaries shall be required
to undertake any such cleanup, removal, remedial or other action to the extent that its obligation
to do so is being contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances in accordance with GAAP.



     6.15 Preparation of Environmental Reports. At the request of the Required Lenders
from time to time (but not more than once in any calendar year), provide to the Lenders within 60
days after such request, at the expense of the Company, an environmental site assessment report for
any of its properties described in such request, prepared by an environmental consulting firm
acceptable to the Administrative Agent, indicating the presence or absence of Hazardous Materials
and the estimated cost of any compliance, removal or remedial action in connection with any
Hazardous Materials on such properties; without limiting the generality of the foregoing, if the
Company fails to provide a report satisfactory in form and substance to the Administrative Agent
within the time referred to above, the Administrative Agent may retain an environmental consulting
firm to prepare such report at the expense of the Company, and the Company hereby grants and agrees
to cause any Subsidiary that owns any property described in such request to grant at the time of
such request to the Administrative Agent, the Lenders, such firm and any agents or representatives
thereof an irrevocable non-exclusive license, subject to the rights of tenants, to enter onto their
respective properties to undertake such an assessment.



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     6.16 Further Assurances. 




     (a) Promptly upon request by the Administrative Agent, or any Lender through the
Administrative Agent, (a) correct any material defect or error that may be discovered in any
Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b)
do, execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts (including obtaining appraisals on real estate
owned by AJI or ASI on behalf of the Administrative Agent), deeds, certificates, assurances
and other instruments as the Administrative Agent, or any Lender through the Administrative
Agent, may reasonably require from time to time in order to (i) effectuate the purposes of
the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan
Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now
or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and
maintain the validity, effectiveness and priority of any of the Collateral Documents and any
of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign,
transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights
granted or now or hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any Loan Document to
which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of
its Subsidiaries to do so.




     (b) Without limiting any other provision in this Agreement or any other Loan Document,
upon the request of the Administrative Agent and, in any event, at least within 45 days
after the end of each fiscal quarter of the Company, to the extent (i) the attachment of any
Lien on any Collateral to secure the Obligations in full (or in part) or the perfection of
such Lien requires the listing of each Secured Party in the filing system, registration
system or otherwise relevant to such Lien (collectively, the “Filing System”) and
(ii) the then existing listing of Secured Parties in the Filing System relevant to such Lien
does not accurately reflect the then existing Secured Parties, the Company shall update each
such listing of the Secured Parties to reflect the then current Secured Parties and,
subsequently, perform a search in each relevant Filing System. In addition, the Company
shall certify to the Administrative Agent that, either (1) each applicable Filing System
accurately reflects the then existing Secured Parties or (2) (x) the then existing listing
of Secured Parties in certain Filing Systems does not accurately reflect the then existing
Secured Parties and detailing the steps taken to revise such listing to accurately reflect
the then existing Secured Parties (attaching evidence thereof in form and substance
satisfactory to the Administration Agent that such steps have been taken) and (y) the
existing listing of Secured Parties in the remaining Filing Systems accurately reflect the
then existing Secured Parties. Notwithstanding any provision of this Agreement or any other
Loan Document, the Company shall not be required to comply with this paragraph (b) more
often than once per year with respect to IP Rights in Japan unless the Administrative Agent
determines that the then existing listing of Secured Parties in the Filing System relevant
to such Lien is materially different from the then existing Secured Parties.



     6.17 Compliance with Terms of Leaseholds. Make all payments and otherwise perform in
all material respects all obligations in respect of all leases of real property to which the
Company or any of its Subsidiaries is a party and which are material to the Company’s or such
Subsidiary’s business or operations, keep such leases in full force and effect and not allow such
leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled
(unless consistent with the business plans delivered pursuant to Section 6.01(c)), notify the
Administrative Agent of any material default by any party with respect to such leases and cooperate
with the Administrative Agent in all respects to cure any such default, and cause each



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of its Subsidiaries to do so, except, in any case, where the failure to do so, either
individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect.



     6.18 Foreign Government Scheme or Arrangement: Foreign Plan.




     (a) Ensure that any employer and employee contributions required by Law or by the terms
of any Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or, if
applicable, accrued, in accordance with normal accounting practices.




     (b) Ensure that the fair market value of the assets of each funded Foreign Plan, the
liability of each insurer for any Foreign Plan funded through insurance or the book reserve
established for any Foreign Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, as of the date hereof, with respect
to all current and former participants in such Foreign Plan according to the actuarial
assumptions and valuations most recently used to account for such obligations in accordance
with applicable generally accepted accounting principles, other than with respect to the
Japanese Borrowers to the extent that non-compliance with this clause (b) by the
Japanese Borrowers (x) does not violate any applicable law or regulation or subject the
Japanese Borrowers to any material fines or Liens against their respective property and (y)
otherwise could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.




     (c) Ensure that each Foreign Plan required to be registered has been registered and has
been maintained in good standing with applicable regulatory authorities.



     6.19 Lien Searches. Promptly following receipt of the acknowledgment copy of any
financing statements filed under the Uniform Commercial Code in any jurisdiction by or on behalf of
the Secured Parties, deliver to the Administrative Agent completed requests for information listing
such financing statement and all other effective financing statements filed in such jurisdiction
that name any Loan Party as debtor, together with copies of such other financing statements.



     6.20 Material Contracts. Perform and observe all the terms and provisions of each
Material Contract to be performed or observed by it, maintain each Material Contract in full force
and effect, enforce each Material Contract in accordance with its terms, take all such action to
such end as may be from time to time requested by the Administrative Agent and, upon request of the
Administrative Agent, make to each other party to each Material Contract such demands and requests
for information and reports or for action as any Loan Party or any of its Subsidiaries is entitled
to make under such Material Contract, and cause each of its Subsidiaries to do so, except, in any
case, where the failure to do so, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.



     6.21 Designation as Senior Debt. Designate all Obligations as “Designated Senior
Indebtedness” under, and defined in, the Sub Debt Documents and all supplemental indentures
thereto, and the Company hereby makes such designation.



     6.22 Security Interests in Accounts, Etc. Subject to Section 6.24, maintain each
Account of the Company and its Subsidiaries (other than Excluded Accounts) at KeyBank or another
commercial bank which is satisfactory to the Administrative Agent, and cause each such Account to
be subject to a first priority security interest in favor of the Administrative Agent or a
representative of the Administrative Agent or of the Secured Parties designated by it or them, in
each case for the benefit of the Secured Parties in a manner satisfactory to the
Administrative Agent (which, with respect to Accounts held in the US, shall be accomplished by
means of a



87









 







valid Control Agreement); provided that to the extent a first priority security interest
cannot be granted in Accounts maintained in Japan and Taiwan, such Accounts are not required to be
subject to a first priority security interest, but must be subject to a security arrangement
satisfactory to the Administrative Agent. Without limiting the generality of the foregoing, each
Japanese Subsidiary shall, on a quarterly basis, provide notice to the financial institution which
holds its Accounts (other than Excluded Accounts) and take all other actions necessary to maintain
a first priority perfected security interest in such Account to the extent that such security
interests can be perfected by taking such action.



     6.23 Approvals and Authorizations . Maintain all authorizations, consents, approvals
and licenses from, exemptions of, and filings and registrations with, each Governmental Authority
of the jurisdiction in which each Foreign Obligor is organized and existing, and all approvals and
consents of each other Person in such jurisdiction, in each case that are required in connection
with the Loan Documents, except, in any case, where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.



     6.24 Post Closing Covenants.




     (a) Within 2 Business Days after the Closing Date, deliver an amount sufficient to
repay the principal, interest and any other amounts due under the Subordinated Notes, and in
any event not less than $86,700,000, into an account subject to the Escrow Agreement in a
manner acceptable to Administrative Agent for application not later than 60 days after the
Closing Date to the redemption of the Subordinated Notes.




     (b) Within 5 Business Days after the Closing Date, deliver to the Administrative Agent
(i) stock certificates representing all Equity Interests in AJI other than the Other AJI
Equity Interests, and (ii) stock certificates representing all Equity Interests in ASI other
than the 4.9% thereof owned by Shinko, in each case accompanied by undated stock powers
executed in blank.




     (c) Within 5 Business Days after the Closing Date, deliver to Japanese counsel to the
Administrative Agent fully executed documents to be filed in connection with the Japanese
Collateral Documents, in form and substance satisfactory to such counsel.




     (d) Within 5 days after the Closing Date, provide evidence satisfactory to the
Administrative Agent that irrevocable notice of redemption has been delivered to the
indenture trustee with respect to the Subordinated Notes requiring redemption of, and
defeasance of the obligations of the Company under, Subordinated Notes on a date no later
than 60 days after the Closing Date;




     (e) Within 5 days after the Closing Date, deliver to Administrative Agent intercompany
promissory notes and endorsements executed by the Company and each of its Subsidiaries, as
applicable, each in form and substance satisfactory to Administrative Agent;




     (f) Within 30 days after the Closing Date, to the extent not already accomplished,
cause all Accounts of the Company and its Subsidiaries to satisfy the requirements of
Section 6.22.




     (g) Within 30 days after the Closing Date, deliver, or cause to be delivered, to Korean
counsel to the Administrative Agent the Korean Subsidiary Guaranty duly executed by Korea
Asyst Co. Ltd. and the Korean Subsidiary of ASI, a Supplement to the



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ASI Subsidiary Guaranty
duly executed by the Korean Subsidiary of ASI and each Korean Security Agreement duly
executed by Korea Asyst Co. Ltd and the Korean Subsidiary of ASI.




     (h) Within 30 days after the Closing Date, deliver, or cause to be delivered to
Administrative Agent, certificates representing all Equity Interests in the Korean Loan
Parties and otherwise comply with Section 6.13 in all respects as if such Korean
Loan Parties were newly acquired Subsidiaries of the Company.




     (i) Within 30 days after the Closing Date, deliver to Administrative Agent a report
supplementing Schedules 5.07, 5.08(c), 5.08(d)(i),
5.08(d)(ii), 5.08(f), 5.08(g) and 5.17 with respect to the
Korean Subsidiaries. Notwithstanding any other provision of this Agreement or the other
Loan Documents, the Administrative Agent and the Lenders understand that, until 30 days
after the Closing Date, the information contained on such Schedules with respect to the
Korean Subsidiaries may not be accurate and failure to provide the information on such
Schedules with respect to the Korean Subsidiaries, or the inaccuracy of such Schedules with
respect to the Korean Subsidiaries, prior to 30 days after the Closing Date shall not result
in a Default or Event of Default.




     (j) Within 45 days after the Closing Date, deliver, or cause to be delivered, to
Administrative Agent certificates representing all Equity Interests in ATT and AST,
accompanied by undated stock powers executed in blank, and otherwise comply with Section
6.13 in all respects (as if ATT and AST each were a newly acquired Subsidiary of the
Company).




     (k) Within 60 days after the Closing Date, deliver, or cause to be delivered to the
Administrative Agent amended Articles of Incorporation of ATT, in form and substance
satisfactory to Administrative Agent;




     (l) Within 90 days after the Closing Date, deliver, or cause to be delivered, to
Administrative Agent certificates representing all Equity Interests in Asyst Shinko Ireland,
Ltd. (“ASIL”), accompanied by undated stock powers executed in blank and a Supplement to the
ASI Subsidiary Guaranty duly executed by the ASIL and otherwise comply with Section
6.13 in all respects (as if ASIL was a newly acquired Subsidiary of the Company).



ARTICLE VII

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Company shall not, nor shall it permit any Subsidiary to, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to
exist under the Uniform Commercial Code of any jurisdiction a financing statement that names the
Company or any of its Subsidiaries as debtor, or assign any accounts or other right to receive
income, or permit any provisions to exist in any Contractual Obligation with respect to the
Company, any Subsidiary or any real or personal property of the foregoing that provides for a Lien
to be granted at a later date or upon the occurrence of an event, other than the following:




     (a) Liens pursuant to any Loan Document;



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     (b) Liens existing on the date hereof and listed on Schedule 5.08(b) and any
renewals or extensions thereof; provided that (i) the property covered thereby is not
changed, (ii) the amount secured or benefited thereby is not increased except as
contemplated by Section 7.02(d), (iii) the direct or any contingent obligor with
respect thereto is not changed, (iv) any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 7.02(d) and (v) in no event shall the
amount secured or benefited thereby exceed $2,000,000 with respect to Liens on property of
AJI;




     (c) Liens for taxes, fees, assessments or other governmental charges not yet due or
which are being contested in good faith and by appropriate proceedings diligently conducted,
if adequate reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;




     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business which are not overdue for a period of more
than 30 days or which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained on the books
of the applicable Person;




     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by applicable Law, including ERISA or any Foreign Government Scheme or
Arrangement;




     (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;




     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting
real property which, in the aggregate, are not substantial in amount, and which do not in
any case materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;




     (h) Liens securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h);




     (i) Liens securing Indebtedness permitted under Section 7.02(f);
provided that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not
exceed the cost or fair market value, whichever is lower, of the property being acquired on
the date of acquisition;




     (j) leases, subleases, licenses and sublicenses granted to others in the ordinary
course of business not interfering in any material respect with the value of the property to
which such Lien is attached or the conduct of business of the Company or any of its
Subsidiaries, as applicable, and any interest or title of a lessor, sublessor, licensor or
sublicensor or under any lease, sublease, license or sublicense;




     (k) zoning or similar laws or rights reserved to or vested in any Governmental
Authority to control or regulate the use of any real property owned by the Company or any of
its Subsidiaries;



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     (l) Liens on or transfers of accounts receivable and contracts and instruments related
thereto arising solely in connection with the sale of such accounts receivable pursuant to
Section 7.05(f);




     (m) Liens in favor of Bank of America, N.A. on cash securing obligations pursuant to
Indebtedness permitted under Section 7.02(k), in an aggregate amount not to exceed
105% of the Dollar Equivalent of the face amount thereof; and




     (n) other Liens affecting property with an aggregate fair value not to exceed
$5,000,000; provided that no such Lien shall extend to or cover any Collateral.



     7.02 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:




     (a) obligations (contingent or otherwise) existing or arising under any Swap Contract,
provided that (i) such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated with fluctuations
in interest rates or foreign exchange rates and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party; provided that the aggregate Swap
Termination Value of Secured Hedge Agreements shall not exceed $100,000,000 at any time
outstanding;




     (b) Indebtedness of a Subsidiary Guarantor owed to the Company or a Subsidiary
Guarantor, which Indebtedness shall (i) be pledged under the applicable Security Agreement,
(ii) be on terms (including subordination terms) acceptable to the Administrative Agent and
(iii) be otherwise permitted under the provisions of Section 7.03;




     (c) Indebtedness under to the Loan Documents;




     (d) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and
any Refinancings thereof (collectively, “Continuing Debt”); provided that
the aggregate principal amount of Subordinated Debt at any time outstanding under this
clause (d) and clauses (i) and (j) below shall not exceed
$150,000,000;




     (e) unsecured Guarantees of the Company or any Subsidiary Guarantor in respect of
Indebtedness otherwise permitted hereunder of the Company or any other Subsidiary Guarantor,
but, if the obligations being Guaranteed are subordinated to the Obligations, only if such
Guarantees are subordinated to the Obligations on substantially the same terms;




     (f) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and
purchase money obligations for fixed or capital assets within the limitations set forth in
Section 7.01(1); provided that the aggregate amount of all such Indebtedness
at anyone time outstanding shall not exceed $5,000,000;




     (g) Indebtedness of any Person that becomes a Subsidiary of the Company after the date
hereof in accordance with the terms of Section 7.03(i), which Indebtedness is
existing at the time such Person becomes a Subsidiary of the Company (other than
Indebtedness incurred solely in contemplation of such Person’s becoming a Subsidiary of the
Company), in an aggregate principal amount not to exceed $5,000,000, and Refinancings of
such Indebtedness;



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     (h) Indebtedness incurred pursuant to Section 7.18, to the extent permitted
thereunder;




     (i) unsecured Subordinated Debt (other than the Subordinated Notes) of the Borrowers
incurred pursuant to the terms of the Sub Debt Documents, and Refinancings of such
Subordinated Debt which continue to satisfy the terms of the definition of “Subordinated
Debt”; provided that (x) no Default shall exist, (y) the Company shall be in
pro forma compliance with Section 7.11 and (z) the aggregate
principal amount of Subordinated Debt at any time outstanding under this clause (i),
clause (d) above and clause (j) below shall not exceed $150,000,000;




     (j) only until the date that is 60 days after the Closing Date, unsecured Indebtedness
incurred pursuant to the Subordinated Notes Documents; provided that (x) no Default
shall exist, (y) the Company shall be in pro forma compliance with Section 7.11 and
(z) the aggregate principal amount of Subordinated Debt at any time outstanding under this
clause (j) and clauses (d) and (i) above shall not exceed
$150,000,000;




     (k) only until the date that is 15 days after the Closing Date, Indebtedness consisting
of (i) a letter of credit issued to Shinko by Bank of America, N.A. under the Existing
Credit Agreement and (ii) a letter of credit issued to JER Bayside, LLC by Bank of America,
N.A. under the Existing Credit Agreement; and




     (l) so long as no Default has occurred and is continuing, unsecured Indebtedness of the
Company and its Subsidiaries in an aggregate principal amount not to exceed $10,000,000 at
any time outstanding.



     7.03 Investments. Make or hold any Investments, except:




     (a) Investments held by the Company and its Subsidiaries in the form of Cash
Equivalents;




     (b) Investments consisting of advances to officers, directors and employees of the
Company and its Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;




     (c) (i) Investments by the Company and its Subsidiaries in their respective
Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Company and
its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the
Company that are not Loan Parties in other Subsidiaries that are not Loan Parties and (iv)
so long as no Default has occurred and is continuing or would result from such Investment,
additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan
Parties in an aggregate amount invested from the date hereof not to exceed $5,000,000;




     (d) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;




     (e) Guarantees permitted by Section 7.02;



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     (f) Investments existing on the date hereof (other than those referred to in
Section 7.03(c)(i) and set forth on Schedule 5.08(e);




     (g) Investments in Swap Contracts permitted under Section 7.02(a);




     (h) the purchase or other acquisition of all of the Equity Interests in, or all or
substantially all of the property of, any Person that, upon the consummation thereof, will
be wholly-owned directly by the Company or one or more of its wholly-owned Subsidiaries
(including as a result of a merger or consolidation); provided that, with respect to
each purchase or other acquisition made pursuant to this Section 7.03(h):




     (i) any such newly-created or acquired Subsidiary shall comply with the
requirements of Section 6.13;




     (ii) the lines of business of the Person to be (or the property of which is to
be) so purchased or otherwise acquired shall be substantially the same lines of
business as one or more of the principal businesses of the Company and its
Subsidiaries in the ordinary course;




     (iii) such purchase or other acquisition shall not include or result in any
contingent liabilities that could reasonably be expected to be material to the
business, financial condition, operations or prospects of the Company and its
Subsidiaries, taken as a whole (as determined in good faith by the board of
directors (or the persons performing similar functions) of the Company or such
Subsidiary if the board of directors is otherwise approving such transaction and, in
each other case, by a Responsible Officer);




     (iv) the total cash consideration paid and assumption of liabilities (including
all indemnities, earnouts and other contingent payment obligations to, and the
aggregate amounts paid or to be paid under noncompete, consulting and other
affiliated agreements with, the sellers thereof, all write-downs of property and
reserves for liabilities with respect thereto and all assumptions of debt,
liabilities and other obligations in connection therewith) by or on behalf of the
Company and its Subsidiaries for any such purchase or other acquisition, when
aggregated with the total cash consideration paid and assumption of liabilities by
or on behalf of the Company and its Subsidiaries for all other purchases and other
acquisitions made by the Company and its Subsidiaries pursuant to this Section
7.03(h), shall not exceed $15,000,000;




     (v) (A) immediately before and immediately after giving pro forma effect to any
such purchase or other acquisition, no Default shall have occurred and be continuing
and (B) immediately after giving effect to such purchase or other acquisition, the
Company and its Subsidiaries shall be in pro forma compliance with all of the
covenants set forth in Section 7.11, such compliance to be determined on the
basis of the financial information most recently delivered to the Administrative
Agent and the Lenders pursuant to Section 6.01(a) or (b) as though
such purchase or other acquisition had been consummated as of the first day of the
fiscal period covered thereby; and




     (vi) the Company shall have delivered to the Administrative Agent and each
Lender, at least five Business Days prior to the date on which any such purchase or
other acquisition is to be consummated, a certificate of a Responsible Officer, in
form and substance reasonably satisfactory to the Administrative Agent and the
Required Lenders, certifying that all of the requirements set forth in



93









 







this clause (vi) have been satisfied or will be satisfied on or prior
to the consummation of such purchase or other acquisition;




     (i) Investments by the Company and its Subsidiaries not otherwise permitted under this
Section 7.03 in an aggregate amount not to exceed $10,000,000 over the term of this
Agreement; provided that, with respect to each Investment made pursuant to this
Section 7.03(i):




     (i) such Investment shall not include or result in any contingent liabilities
that could reasonably be expected to be material to the business, financial
condition, operations or prospects of the Company and its Subsidiaries, taken as a
whole (as determined in good faith by the board of directors (or persons performing
similar functions) of the Company or such Subsidiary if the board of directors is
otherwise approving such transaction and, in each other case, by a Responsible
Officer);




     (ii) such Investment shall be in property that is part of, or in lines of
business that are, substantially the same lines of business as one or more of the
principal businesses of the Company and its Subsidiaries in the ordinary course;




     (iii) any determination of the amount of such Investment shall include all cash
and noncash consideration (including the fair market value of all Equity Interests
issued or transferred to the sellers thereof, all indemnities, earnouts and other
contingent payment obligations to, and the aggregate amounts paid or to be paid
under noncompete, consulting and other affiliated agreements with, the sellers
thereof, all write-downs of property and reserves for liabilities with respect
thereto and all assumptions of debt, liabilities and other obligations in connection
therewith) paid by or on behalf of the Company and its Subsidiaries in connection
with such Investment; and




     (iv) (A) immediately before and immediately after giving pro forma effect to
any such purchase or other acquisition, no Default shall have occurred and be
continuing and (B) immediately after giving effect to such purchase or other
acquisition, the Company and its Subsidiaries shall be in pro forma compliance with
all of the covenants set forth in Section 7.11, such compliance to be
determined on the basis of the financial information most recently delivered to the
Administrative Agent and the Lenders pursuant to Section 6.01(a) or
(b) as though such Investment had been consummated as of the first day of
the fiscal period covered thereby;




     (j) the acquisition of 4.9% of the Equity Interests of ASI in accordance with the
Acquisition Agreement;




     (k) repurchases of stock from former officers, directors or employees of the Company
and its Subsidiaries under the terms of applicable repurchase agreements in an aggregate
amount not to exceed $1,000,000 in any fiscal year, provided that no Event of
Default has occurred, is continuing or would exist after giving effect to the repurchases;
and




     (l) other Investments not exceeding $5,000,000 in the aggregate in any fiscal year of
the Company.



     7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of transactions) all or a




94










 





substantial portion of its assets (whether now owned or hereafter acquired) to or in favor of
any Person, except that, so long as no Default exists or would result therefrom:




     (a) any Subsidiary may merge with (i) the Company, provided that the Company
shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries;
provided that when any Subsidiary Guarantor is merging with another Subsidiary, a
Subsidiary Guarantor shall be the continuing or surviving Person; provided
further that when any US Subsidiary Guarantor is merging with another Subsidiary,
the continuing and surviving Person shall be a US Subsidiary Guarantor; and




     (b) any Subsidiary may Dispose of all or a substantial portion of its assets (upon
voluntary liquidation or otherwise) to the Company or to another Subsidiary;
provided that if the transferor in such a transaction is a Subsidiary Guarantor,
then the transferee must either be the Company or a Subsidiary Guarantor; provided
further that if the transferor in such a transaction is a US Subsidiary Guarantor,
then the transferee must either be the Company or a US Subsidiary Guarantor;




     (c) any Subsidiary that is not a Loan Party may dispose of all or substantially all its
assets (including any Disposition that is in the nature of a liquidation) to (i) another
Subsidiary that is not a Loan Party or (ii) to a Loan Party;




     (d) in connection with any acquisition permitted under Section 7.03, any
Subsidiary of the Company may merge into or consolidate with any other Person or permit any
other Person to merge into or consolidate with it; provided that (i) the Person
surviving such merger shall be a wholly-owned Subsidiary of the Company and (ii) in the case
of any such merger to which any Loan Party (other than the Company) is a party, such Loan
Party is the surviving Person; and




     (e) so long as no Default has occurred and is continuing or would result therefrom, any
Subsidiary of the Company may merge into or consolidate with any other Person or permit any
other Person to merge into or consolidate with it; provided that in each case,
immediately after giving effect thereto in the case of any such merger to which any Loan
Party (other than the Company) is a party, such Loan Party is the surviving corporation.



     7.05 Dispositions. Make any Disposition or enter into any agreement to make any
Disposition, except:




     (a) Dispositions of obsolete or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business;




     (b) Dispositions of inventory in the ordinary course of business;




     (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;




     (d) Subject to Section 7.04(b), Dispositions of property by any Subsidiary to
the Company or to a wholly-owned Subsidiary; provided that if the transferor of such
property is a Subsidiary Guarantor (or, in each case, Equity Interests therein), the
transferee thereof must either be the Company or a Subsidiary Guarantor;




     (e) Dispositions permitted by Section 7.04;



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     (f) Dispositions of accounts (as such term is defined in Section 9-102 of the UCC) in
the ordinary course of business (including any factoring arrangements), and other
Dispositions of accounts for collection;




     (g) Dispositions by the Company and its Subsidiaries of property pursuant to
sale-leaseback transactions, provided that the aggregate book value of all property
so Disposed of shall not exceed $10,000,000 from and after the Closing Date; and




     (h) Dispositions (other than of a Subsidiary Guarantor (or, in each case, Equity
Interests therein)) by the Company and its Subsidiaries not otherwise permitted under this
Section 7.05; provided that (i) at the time of such Disposition, no Default
shall exist or would result from such Disposition, (ii) the aggregate book value of all
property Disposed of in reliance on this clause (g) in any fiscal year shall not
exceed $10,000,000 and (iii) the purchase price for such asset shall be paid to the Company
or such Subsidiary solely in cash.



provided that any Disposition pursuant to Section 7.05(a) through Section 7.05
(g) shall be for the fair market value of such asset.



     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity
Interests or accept any capital contributions, except that, so long as no Default shall have
occurred and be continuing at the time of any action described below or would result therefrom:




     (a) each Subsidiary may make Restricted Payments to the Company, the Subsidiary
Guarantors and any other Person (other than Shinko (except to the extent provided in
clause (d) below)) that owns a direct Equity Interest in such Subsidiary, ratably
according to their respective holdings of the type of Equity Interest in respect of which
such Restricted Payment is being made;




     (b) the Company and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such
Person;




     (c) the Company and each Subsidiary may purchase, redeem or otherwise acquire its
common Equity Interests with the proceeds received from the substantially concurrent issue
of new common Equity Interests; and




     (d) the Company, AJI and ASI may make Restricted Payments to Shinko to the extent
required under the Acquisition Agreement (as in effect on June 22, 2006, unless any
subsequent modifications thereto reduce the amount of Restricted Payments and are otherwise
permitted under Section 7.16).



     7.07 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Company and its Subsidiaries
on the date hereof or any business substantially related or incidental thereto.



     7.08 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of the Company, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Company or such Subsidiary as would be
obtainable by the Company or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than an Affiliate; provided that the foregoing restriction shall not
apply to transactions between or among the Company and any Subsidiary Guarantor or between and
among any Subsidiary Guarantors.



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     7.09 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the ability (i) of any
Subsidiary to make Restricted Payments to the Company or any Subsidiary Guarantor or to otherwise
transfer property to or invest in the Company or any Subsidiary Guarantor, except for any agreement
in effect at the time any Subsidiary becomes a Subsidiary of the Company, so long as such agreement
was not entered into solely in contemplation of such Person becoming a Subsidiary of the Company,
(ii) of any Subsidiary to Guarantee the Indebtedness of the Company or (iii) of the Company or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; or (b)
requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure
another obligation of such Person.



     7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.11 Financial Covenants.




     (a) Consolidated Total Leverage Ratio. Permit the Consolidated Total Leverage
Ratio at the end of any Measurement Period to be greater than 4.00:1.




     (b) Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio at the end of any Measurement Period to be greater than 3.00:1.




     (c) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed
Charge Coverage Ratio as of the end of any fiscal quarter of the Company to be less than
1.50:1.



     7.12 Capital Expenditures. Make or become legally obligated to make any Capital
Expenditure, except for Capital Expenditures in the ordinary course of business not exceeding
$25,000,000 in the aggregate for the Company and it Subsidiaries during each fiscal year.



     7.13 Amendments of Organization Documents. Amend any of its Organization Documents in
a manner materially adverse to the rights or remedies of the Secured Parties under the Loan
Documents.



     7.14 Accounting Changes. Make any change in (a) accounting policies or reporting
practices, except as required by GAAP, or (b) fiscal year.



     7.15 Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Indebtedness, except (a) the prepayment of the Credit
Extensions in accordance with the terms of this Agreement, (b) regularly scheduled or required
repayments or redemptions or other payments of Indebtedness set forth in Schedule 7.02 and
refinancings and refundings of such Indebtedness in compliance with Section 7.02(d), and
(c) redemption of the Subordinated Notes within 60 days after the Closing Date .



     7.16 Amendment, Etc. of Debt Documents. Amend, modify or change in any manner any
material term or condition of (a) the Escrow Agreement or (b) any Indebtedness set forth in
Schedule 7.02 or Subordinated Debt, except for (i) any Refinancings thereof permitted by
Section 7.02 and (ii) any amendment, supplement, waiver or modification for which
no fee is payable to the holders of such Indebtedness and which (A) extends the date or reduces the
amount of any required repayment, prepayment or redemption of the principal of such



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Indebtedness, (B) reduces the rate or extends the date for payment of the interest, premium
(if any) or fees payable on such Indebtedness or (C) makes the covenants, events of default or
remedies in Contractual Obligations governing such Indebtedness less restrictive on the applicable
Loan Parties or applicable Subsidiaries.



     7.17 Designation of Senior Debt. Designate any Indebtedness (other than the
Indebtedness under the Loan Documents) of the Company or any of its Subsidiaries as “Designated
Senior Debt” (or any similar term) under, and as defined in, the Subordinated Notes Documents, or
any other Sub Debt Document.



     7.18 Lease Obligations. Create, incur, assume or suffer to exist any new or
additional obligations as lessee (a) for the rental or hire of real or personal property in
connection with any sale and leaseback transaction, or (b) for the rental or hire of other real or
personal property of any kind under leases or agreements to lease (including Capitalized Leases)
having an original term of one year or more that would cause the direct and contingent liabilities
of the Company and its Subsidiaries, on a consolidated basis, in respect of all such obligations to
exceed $10,000,000 payable in any period of 12 consecutive months.



ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:




     (a) Non-Payment. Any Borrower or any other Loan Party fails to (i) pay when
and as required to be paid herein, and in the currency required hereunder, any amount of
principal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in
respect of L/C Obligations, or (ii) pay within five days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) pay within
five days after the same becomes due, any other amount payable hereunder or under any other
Loan Document; or




     (b) Specific Covenants. (i) The Company fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02,
6.05(a)(i), 6.10, 6.11, 6.13, 6.18, 6.22,
6.24, or Article VII, or (ii) any Subsidiary Guarantor fails to perform or
observe any term, covenant or agreement contained in Article IV of the US Subsidiary
Guaranty, or any corresponding provision in any other Guaranty (with respect to the
covenants set forth in Article VII, as such covenants apply to each Subsidiary
Guarantor) or (iii) any of the Loan Parties fails to perform or observe any term, covenant
or agreement contained in Section 4.14 of the US Security Agreement or any corresponding
provision contained in any other Collateral Document to which it is a party; or




     (c) Other Defaults. (i) The Company fails to perform or observe any term,
covenant or agreement contained in any of Section 6.03 or 6.05(a)(ii),
(b) or (c) and such failure continues for 3 Business Days or (ii) any Loan
Party fails to perform or observe any other covenant or agreement (not specified in
Section 8.01(a) or (b) or Section 8.01(c)(i) above) contained in any
Loan Document on its part to be performed or observed and such failure continues for 30
days; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the Company or any
other Loan Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading when made or deemed made;
or



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     (e) Cross-Default. (i) The Company or any Subsidiary thereof (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more than the Threshold
Amount, or (B) fails to observe or perform any other agreement or condition relating to any
such Indebtedness or Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as to which the
Company or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract)
or (B) any Termination Event (as so defined) under such Swap Contract as to which the
Company or any Subsidiary thereof is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by the Company or such Subsidiary as a result thereof is
greater than the Threshold Amount; or




     (f) Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary thereof
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property is instituted without the
consent of such Person and continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or




     (g) Inability to Pay Debts; Attachment. (i) The Company or any Subsidiary
thereof becomes unable or admits in writing its inability or fails generally to pay its
material debt obligations as they become due, (ii) in respect of the Company or any
Subsidiary thereof (excluding a Japanese Subsidiary thereof), any writ or warrant of
attachment or execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy, (iii) in respect of any Japanese Subsidiary of the Company,
any order or notice of provisional attachment (“karishobun”), provisional attachment
(“karisashiosae”) for the purpose of assuring collection of taxes or public imposts, post
judgment attachment (“sashiosae”) or other court order of enforcement issued with respect to
any of its rights under agreement or attachment with respect to any deposits or other
credits of such Japanese Subsidiary with any bank and/or any financial institution is
dispatched, or (iv) any clearing house in the observance of its rules takes procedures for
suspension of any Japanese Subsidiary’s transactions with banks and similar institutions; or



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     (h) Judgments. There is entered against the Company or any Subsidiary thereof
(i) one or more final, nonappealable judgments or orders for the payment of money in an
aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to
the extent not covered by independent third-party insurance as to which the insurer is rated
at least “A” by A.M. Best Company, has been notified of the potential claim and does not
dispute coverage), or (ii) any one or more non-monetary final, nonappealable judgments that
have, or could reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 20 consecutive days during
which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is
not in effect; or




     (i) ERISA; Foreign Government Scheme or Arrangement. (i) An ERISA Event occurs
with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company under Title IV of ERISA to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, (ii) the Company or any ERISA Affiliate fails to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of the Threshold Amount, or (iii) a Foreign Plan Event occurs, or the Company or any
Loan Party fails to pay amounts due, with respect to any Foreign Plan resulting in
liabilities, which when combined with clauses (i) and (ii), respectively, in
an aggregate amount in excess of the Threshold Amount; or




     (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations and termination of
the Commitments, ceases to be in full force and effect and the invalidity of such provisions
could reasonably be expected to materially and adversely affect the rights and remedies of
the Secured Parties; or any Loan Party or any other Person contests in any manner the
validity or enforceability of any provision of any Loan Document; or any Loan Party denies
that it has any or further liability or obligation under any provision of any Loan Document,
or purports to revoke, terminate or rescind any provision of any Loan Document and the
revocation, termination or rescission of such provision could reasonably be expected to
materially and adversely affect the rights and remedies of the Secured Parties; or




     (k) Change of Control. There occurs any Change of Control; or




     (l) Collateral Documents. Any Collateral Document after delivery thereof
pursuant to Section 4.01 or 6.13 shall for any reason (other than pursuant
to the terms thereof) cease to create a valid and perfected first priority Lien (subject to
Liens permitted by Section 7.01) on any material portion of the Collateral purported
to be covered thereby; or




     (m) Subordination. (i) The subordination provisions of or relating to any Sub
Debt Documents or other subordinated Indebtedness (the “Subordination Provisions”)
shall, in whole or in part, terminate, cease to be effective or cease to be legally valid,
binding and enforceable against any holder of the applicable subordinated Indebtedness; or
(ii) the Company or any other Loan Party shall, directly or indirectly, disavow or contest
in any manner (A) the effectiveness, validity or enforceability of any of the Subordination
Provisions, (B) that the Subordination Provisions exist for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer or (C) that all payments of



100









 







principal of or premium and interest on the applicable subordinated Indebtedness, or
realized from the liquidation of any property of any Loan Party, shall be subject to any of
the Subordination Provisions; or




     (n) Material Contracts. The occurrence of any default or breach by any party
under any Material Contract, or any Material Contract shall be terminated prior to its term
for any reason and such default, breach or termination could reasonably be expected to have
a Material Adverse Effect.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:




     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;




     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by each Loan Party;




     (c) require that each Borrower Cash Collateralize the L/C Obligations (in an amount
equal to its pro rata share of the then Outstanding Amount thereof); and




     (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and
remedies available to it, the Lenders and the L/C Issuer under the Loan Documents, at law or
in equity;



provided that upon the occurrence of an actual or deemed entry of an order for relief with respect
to any Borrower under the Bankruptcy Code of the United States, upon the filing of a petition for
the commencement of any insolvency proceedings with respect of any Japanese Subsidiary, or upon the
occurrence of any event specified under Section 8.01(g)(iii) or (iv), the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.



     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:



First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the
Administrative Agent in its capacity as such;



Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest, and Letter of Credit Fees) payable to the


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Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the
respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may
be employees of any Lender or the L/C Issuer) and amounts payable under Article
III), ratably among them in proportion to the respective amounts described in this
clause Second payable to them;



Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations,
ratably among the Lenders and the L/C Issuer in proportion to the respective amounts
described in this clause Third payable to them;



Fourth, to payment of that portion of the Obligations constituting unpaid principal
of the Loans, L/C Borrowings and amounts owing under Secured Hedge Agreements and Secured
Cash Management Agreements, ratably among the Lenders, the L/C Issuer, the Hedge Banks and
the Cash Management Banks in proportion to the respective amounts described in this clause
Fourth held by them;



Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and



Last, the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to the Company or as otherwise required by Law.



Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.



ARTICLE IX

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. (a) Each of the Lenders and the L/C Issuer hereby
irrevocably appoints KeyBank to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf
and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and no Borrower shall have rights as a third party beneficiary of any of such
provisions.



     (b) The Administrative Agent shall also act as the “collateral agent”, “security agent”,
“security trustee”, or in any similar capacity under the Loan Documents, and each of the Lenders
(in its capacities as a Lender, Swing Line Lender (if applicable), potential Hedge Bank and
potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent, “security agent”, “security trustee”, or in any similar
capacity of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and
all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations,
together with such powers and discretion as are reasonably incidental thereto. In this connection,
the Administrative Agent, as “collateral agent”, “security agent”, “security trustee”, or in any
similar capacity and any co-agents, sub-agents and attorneys-in-fact appointed by the
Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any



102









 







Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for
exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall
be entitled to the benefits of all provisions of this Article IX and Article X
(including Section 10.04(c), as though such co-agents, sub-agents and attorneys-in-fact
were the “collateral agent”, “security agent”, “security trustee”, or in any similar capacity under
the Loan Documents) as if set forth in full herein with respect thereto.



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with the Borrowers or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



     9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any of the Borrowers or any of their respective Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Company, a Lender or the L/C Issuer.



     The Administrative Agent shall not 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 or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other



103









 







agreement, instrument or document, or the creation, perfection or priority of any Lien
purported to be created by the Collateral Documents, (v) the value or the sufficiency of any
Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.



     9.04 Reliance by Administrative Agent. The Administrative 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 (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative 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.



     9.05 Delegation of Duties.




     (a) The Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, 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.




     (b) Each of the Lenders hereby appoints the Administrative Agent to be its attorney
generally for and in the name and on behalf of each Lender (and the Administrative Agent
hereby accepts such appointment), to execute, seal and deliver and otherwise perfect and do
all such agreements, instruments, acts and things which may be required for the full
exercise of all or any of the rights, powers or remedies conferred hereby or which may be
deemed proper in or in connection with all or any of the purposes aforesaid. Each of the
Lenders ratifies and confirms, and agrees to ratify and confirm, any agreement, instrument
act or thing which the Administrative Agent may execute or do pursuant thereto.



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders, the L/C Issuer and the Company. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. 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 Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Company and the Lenders that no qualifying Person has



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accepted such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer
under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is appointed) and (b) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until
such time as the Required Lenders appoint a successor Administrative Agent as provided for above in
this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Company to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Company and such successor. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 10.04 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C
Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties 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 and the L/C Issuer also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties 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 action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the Bookrunners, Book Managers or Arrangers listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party,
the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and



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the Administrative Agent under Sections 2.03(i) and (j), 2.09
and 10.04) allowed in such judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, if the Administrative Agent shall consent to the making
of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.09 and 10.04.



Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer or in any such proceeding.



     9.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion,




     (a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part
of or in connection with any sale permitted hereunder or under any other Loan Document, or
(iii) if approved, authorized or ratified in writing in accordance with Section
10.01;




     (b) to release any Subsidiary Guarantor from its obligations under any Guaranty if such
Person ceases to be a Subsidiary as a result of a transaction permitted hereunder; and




     (c) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 7.01(i).



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Subsidiary Guarantor from its obligations under any
Guaranty pursuant to this Section 9.10. In each case as specified in this Section
9.10, the Administrative Agent will, at the Company’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request to evidence the
release of such item of Collateral from the assignment and security interest granted under the
Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from
its obligations under its Guaranty, in each case in accordance with the terms of the Loan Documents
and this Section 9.10.



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ARTICLE X

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by the Company or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or
the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that no such amendment, waiver or consent shall:




     (a) waive any condition set forth in Section 4.01 (other than Section
4.01(b)(i)), or, in the case of the initial Credit Extension, Section 4.02,
without the written consent of each Lender;




     (b) without limiting the generality of clause (a) above, waive any condition
set forth in Section 4.02 as to any Credit Extension under the Revolving Credit
Facility without the written consent of the Required Revolving Lenders;




     (c) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of each Lender;




     (d) postpone any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under such other Loan Document without the written consent of each Lender
entitled to such payment;




     (e) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or (subject to clause (v) of the second proviso to this Section
10.01) any fees or other amounts payable hereunder or under any other Loan Document, or
change the manner of computation of any financial ratio (including any change in any
applicable defined term) used in determining the Applicable Rate that would result in a
reduction of any interest rate on any Loan or any fee payable hereunder, without the written
consent of each Lender entitled to such amount; provided that only the consent of
the Required Lenders shall be necessary to amend the definition of “Default Rate” or to
waive any obligation of any Borrower to pay interest or Letter of Credit Fees at the Default
Rate;




     (f) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of each
Lender;




     (g) change (i) any provision of this Section 10.01 or the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder (other than the definitions specified in
clause (ii) of this Section 10.01(g)), without the written consent of each
Lender or (ii) the definition of “Required Revolving Lenders” or “Required Term Lenders”
without the written consent of each Lender under the applicable Facility;




     (h) release all or substantially all of the Collateral in any transaction or series of
related transactions, without the written consent of each Lender;



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     (i) release the Company from the Company Guaranty or any Subsidiary Guarantor from its
Guaranty, without the written consent of each Lender; or




     (j) impose any greater restriction on the ability of any Lender under a Facility to
assign any of its rights or obligations hereunder without the written consent of (i) if such
Facility is the Term Loan Facility, the Required Term Lenders and (ii) if such Facility is
the Revolving Credit Facility, the Required Revolving Lenders;



and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; (iv) Section 10.06(h) may not be amended, waived or otherwise modified without
the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification; and (v) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.



     10.02 Notices; Effectiveness; Electronic Communications. (a) Notices
Generally. Except in the case of notices and other communications expressly permitted to be
given by telephone (and except as provided in clause (b) below), 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 telecopier as follows, and all
notices and other communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:




     (i) if to a Borrower, the Administrative Agent, the L/C Issuer or the Swing
Line Lender, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire.



Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in clause b) below,
shall be effective as provided in such clause (b).



          (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Company may, in




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its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



          (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any
Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of any Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided that in no event shall any
Agent Party have any liability to any Borrower, any Lender, the L/C Issuer or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual
damages).




          (d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Company, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.




          (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of
any Borrower even if (i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Company shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of
them from all losses, costs, expenses and




109









 








liabilities resulting from the reliance by such Person on each notice purportedly given by or
on behalf of any Borrower. All telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.



     10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each
other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



     10.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. Except as
otherwise agreed in writing between the Company and the Administrative Agent, the Company shall 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 syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the other Loan Documents
or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) (ii) all reasonable out-of-pocket
expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer
(including the reasonable fees, charges and disbursements of any counsel for the Administrative
Agent, any Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys who may
be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with Loans made or Letters
of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.



          (b) Indemnification by the Company. The Company shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, 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, direct damages (which may include payments by
an Indemnitee of special, indirect, consequential or punitive damages to third parties),
liabilities and related expenses (including the fees, charges and disbursements of any counsel for
any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time
charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other
Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case
of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or
the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor
a demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or operated by any
Borrower or any of its Subsidiaries,




110









 








or any Environmental Liability related in any way to any Borrower 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, whether brought by a third
party or by the Company or any other Loan Party or any of the Company’s or such Loan Party’s
directors, shareholders or creditors, 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, fraud
or willful misconduct of, or breach of a material obligation by, such Indemnitee. No Loan Party
shall have any indemnification obligation under this section or otherwise to any Indemnitee (other
than the Administrative Agent (and any sub-agent thereof) and the Arranger) to the extent of any
losses, claims, damages, liabilities and related expenses asserted by an Indemnitee against another
Indemnitee under this Agreement.



          (c) Reimbursement by Lenders. To the extent that the Company for any reason fails to
indefeasibly pay any amount required under clause (a) or (b) of this Section to be
paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, 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 any such sub-agent) or the L/C Issuer in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this clause (c) are subject to the provisions of
Section 2.12(d).




          (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law (except as provided in clause (b) above), no Borrower and no Indemnitee
shall assert, and each hereby waives, any claim against the other or any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee
referred to in clause (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of, or breach of a material obligation by, such
Indemnitee as determined by a final and nonappealable judgment of a court of competent
jurisdiction.




          (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.




          (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.




     10.05 Payments Set Aside. To the extent that any payment by or on behalf of any
Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the



111









 







Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to
be fraudulent or preferential, set aside or required (including pursuant to any settlement entered
into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to
a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief
Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C
Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum
equal to the Applicable Overnight Rate from time to time in effect, in the applicable currency of
such recovery or payment. The obligations of the Lenders and the L/C Issuer under clause
(b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.



     10.06 Successors and Assigns. (a) Successors and Assigns Generally. 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 no Borrower may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
Section 10.06(b), (ii) by way of participation in accordance with the provisions of
Section 10.06(d), or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of Section 10.06(f), or (iv) to an SPC in accordance with the provisions
of Section 10.06(h) (and any other attempted assignment or transfer by any party hereto
shall be null and void). 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, Participants to the extent provided in clause (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.



          (b) Assignments by Lenders. Any Lender may at any time 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(s) and the Loans (including for purposes of Section 10.06(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:





     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under any Facility and the Loans at the time
owing to it under such Facility or in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and




     (B) in any case not described in clause (b)(i)(A) of this
Section, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Commitment is not then in
effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if “Trade Date” is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $1,000,000, in



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the case of any assignment in respect of the Revolving Credit Facility
or any assignment in respect of the Term Loan Facility, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Company otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided that concurrent
assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or to an
Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount
has been met.




     (ii) Proportionate Amounts. 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 with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not (A) apply to the Swing Line
Lender’s rights and obligations in respect of Swing Line Loans or (B) prohibit any
Lender from assigning all or a portion of its rights and obligations among separate
Facilities on a non-pro rata basis;




     (iii) Required Consents. No consent shall be required for any
assignment except to the extent required by clause (b)(i)(B) of this Section
and, in addition:




     (A) the consent of the Company (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in
respect of (i) any Term Loan Commitment or Revolving Credit Commitment if
such assignment is to a Person that is not a Lender with a Commitment in
respect of the applicable Facility, an Affiliate of such Lender or an
Approved Fund with respect to such Lender or (ii) any Term Loan to a Person
that is not a Lender, an Affiliate of a Lender or an Approved Fund; and




     (C) the consent of the L/C Issuer (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more
Letters of Credit (whether or not then outstanding); and




     (D) the consent of the Swing Line Lender (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment in
respect of the Revolving Credit Facility.




     (iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount, if any, required as
set forth in Schedule 10.06; provided that the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in
the case of any assignment. The assignee, if it is not a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.



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     (v) No Assignment to Company. No such assignment shall be made to the
Company or any of the Company’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause
c of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption 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 3.01, 3.04, 3.05 and
10.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, each Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this clause 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
Section 10.06(d).



          (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders
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 Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.




          (d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i)
such Lender’s obligations under this Agreement and the other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C Issuer
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement and the other Loan Documents.




     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, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to clause (e) of this
Section, each Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to Section 10.06(b). To the extent
permitted by law, each Participant also shall be



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entitled to the benefits of Section 10.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were a Lender.



          (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation 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 3.01 unless the Company is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 3.01(e) as though it were a Lender.




          (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.




          (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.




          (h) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Company (an “SPC”) the option to provide all or any part of
any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof
or, if it fails to do so, to make such payment to the Administrative Agent as is required under
Section 2.12(b)(ii). Each party hereto hereby agrees that (i) neither the grant to any SPC
nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise
increase or change the obligations of the Borrowers under this Agreement (including its obligations
under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender
shall for all purposes, including the approval of any amendment, waiver or other modification of
any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by
an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding commercial paper or
other senior debt of any SPC, it will not institute against, or join any other Person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Company and the Administrative Agent and with the payment of a processing fee in the
amount of $2,500, assign all or any portion of its




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right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on
a confidential basis any non-public information relating to its funding of Loans to any rating
agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.



          (i) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time KeyBank assigns all of its Revolving
Credit Commitments and Revolving Credit Loans pursuant to Section 10.06(b), KeyBank may,
(i) upon 30 days’ notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) upon 30
days’ notice to the Company, resign as Swing Line Lender. In the event of any such resignation as
L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from among the Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided that no failure by the
Company to appoint any such successor shall affect the resignation of KeyBank as L/C Issuer or
Swing Line Lender, as the case may be. If KeyBank resigns as L/C Issuer, it shall retain all the
rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If
KeyBank resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders to make Base Rate
Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section
2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to KeyBank to effectively
assume the obligations of KeyBank with respect to such Letters of Credit.




     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, advisors and
representatives (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), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (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 swap or derivative transaction relating to a
Borrower and its obligations, (g) with the consent of the Company or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than the Company.



     For purposes of this Section, “Information” means all information received from the
Company or any Subsidiary thereof relating to the Company or any Subsidiary thereof or any of their
respective businesses, other than any such information that is available to the



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Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to
disclosure by the Company or any Subsidiary thereof, provided that, in the case of
information received from the Company or any such Subsidiary after the date hereof, such
information is clearly identified at the time of delivery as confidential. 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.



     Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Company or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any
time and from time to time, after obtaining the prior written consent of the Administrative Agent,
to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or
any such Affiliate to or for the credit or the account of any Borrower against any and all of the
obligations of such Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Agreement or any other Loan Document and although such
obligations of such Borrower may be contingent or unmatured or are owed to a branch or office of
such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated
on such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates
under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Company and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the validity of such
setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”).
If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Company. In determining whether the interest contracted
for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such
Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts
the total amount of interest throughout the contemplated term of the Obligations hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all 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



117









 







Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. 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.



     10.11 Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the Administrative
Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is a Defaulting Lender, 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, and consents required
by, Section 10.06), all of its interests, rights and obligations under this Agreement and
the related Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that:




     (a) the Company shall have paid (or caused a Designated Subsidiary to pay) to the
Administrative Agent the assignment fee specified in Section 10.06(b);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company or applicable Designated Subsidiary
(in the case of all other amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01 such
assignment will result in a reduction in such compensation or payments thereafter; and




     (d) such assignment does not conflict with applicable Laws.



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     A Lender shall not be required to make any such assignment or 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.



     10.14 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



          (b) SUBMISSION TO JURISDICTION. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS 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 ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 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 BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.




          (c) WAIVER OF VENUE. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




          (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. EACH JAPANESE BORROWER HEREBY
IRREVOCABLY APPOINTS THE COMPANY, AS ITS AUTHORIZED AGENT TO RECEIVE ON ITS BEHALF SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT AND CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
SUCH COURTS BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO SUCH AGENT AT SUCH
ADDRESS, AND AGREES THAT SUCH SERVICE, TO THE FULLEST EXTENT PERMITTED BY LAW: (I) SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON IT IN ANY SUCH SUIT, ACTION OR PROCEEDING; AND
(II) SHALL BE TAKEN AND HELD TO BE VALID PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT. IF ANY
AGENT APPOINTED BY ANY PERSON PARTY HERETO REFUSES TO ACCEPT SERVICE, SUCH PERSON HEREBY AGREES
THAT SERVICE UPON IT BY MAIL SHALL UPON RECEIPT




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CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN CONTAINED SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY OTHER PERSON PARTY
HERETO TO BRING PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS OF ANY OTHER JURISDICTION.



     10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.16 California Judicial Reference. If any action or proceeding is filed in a court
of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is
hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section
638 to a referee (who shall be a single active or retired judge) to hear and determine all of the
issues in such action or proceeding (whether of fact or of law) and to report a statement of
decision, provided that at the option of any party to such proceeding, any such issues
pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section
1281.8 shall be heard and determined by the court, and (b) without limiting the generality of
Section 10.04, the Company shall be solely responsible to pay all fees and expenses of any
referee appointed in such action or proceeding.



     10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, each Borrower acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (i) the credit facility provided for hereunder and any related
arranging or other services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial
transaction between the Borrowers and their respective Affiliates, on the one hand, and the
Administrative Agent and the Arranger, on the other hand, and the Borrowers are capable of
evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver
or other modification hereof or thereof); (ii) in connection with the process leading to such
transaction, the Administrative Agent and the Arranger each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for any of the Borrower or any of
Affiliates, stockholders, creditors or employees or any other Person; (iii) neither the
Administrative Agent nor the Arranger has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of any Borrower with respect to any of the transactions contemplated hereby
or the process leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent
or the Arranger has advised or is currently advising any of the Borrowers or their respective
Affiliates on other matters) and neither the Administrative Agent nor the Arranger has any
obligation to any of the Borrowers or any of their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth



120









 







herein and in the other Loan Documents; (iv) the Administrative Agent and the Arranger and
their respective Affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Borrowers and their respective Affiliates, and neither the
Administrative Agent nor the Arranger has any obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent and the
Arranger have not provided and will not provide any legal, accounting, regulatory or tax advice
with respect to any of the transactions contemplated hereby (including any amendment, waiver or
other modification hereof or of any other Loan Document) and each Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each
Borrower hereby waives and releases, to the fullest extent permitted by law, any claims that it may
have against the Administrative Agent and the Arranger with respect to any breach or alleged breach
of agency or fiduciary duty.



     10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrowers, which information includes the name and address
of each Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.



     10.19 Time of the Essence. Time is of the essence of the Loan Documents.



     10.20 Judgment Currency. If, for the purposes of obtaining judgment in any court, it
is necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation of each Borrower
in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or
under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent
that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so
due in the Judgment Currency, the Administrative Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the Administrative Agent
from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other
Person who may be entitled thereto under applicable law).



     10.21 Appointment and Authority of the Company. Each of the other Loan Parties hereby
irrevocably appoints the Company to act on its behalf under this Agreement and under the other Loan
Documents to which it is a party, and authorizes the Company to take such actions on its behalf and
to exercise such powers as are delegated to it by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto.



     10.22 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR



121









 







SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.



     10.23 Lenders’ Joint and Several Rights with Respect to Taiwanese Collateral. With
respect to the Taiwanese Collateral, the rights of the Lenders hereunder are joint and several
under Article 283 of the Civil Code of the Republic of China and, accordingly, each Lender shall,
subject to the terms hereof and of the Taiwanese Collateral Documents, be entitled to claim for the
full Obligations amount at any time owing and each Lender shall be entitled to protect and enforce
its rights arising out of this Agreement and the Taiwanese Collateral Documents with respect to
such full amount; provided that each Lender agrees not to claim or enforce such rights
unilaterally but shall appoint the Administrative Agent pursuant to Section 9.01 to
exercise and enforce the Lenders’ rights arising out of this Agreement and share among themselves
any risks and benefits in respect of the Obligations in accordance with this Agreement or any
Taiwanese Collateral Document in proportion to their respective Applicable Percentage of the
Facilities.



     10.24 Collection Allocation Mechanism.



          (a) Implementation of Collection Allocation Mechanism. On the CAM Exchange Date, (i)
the Commitments shall terminate as provided in Section 8, (ii) each Lender with a Revolving Credit
Commitment shall immediately be deemed to have acquired (and shall promptly make payment therefor
to Swing Line Lender in accordance with Section 2.04(c)) participations in the Swing Line
Loans in an amount equal to such Revolving Credit Lender’s pro rata share of each Swing Line Loan
outstanding on such date; (iii) the interest rate applicable to all Loans shall be the highest rate
applicable to overdue Loans of the relevant type that are Base Rate Loans hereunder, (iv) the
Lenders shall automatically and without further action (and without regard to the provisions of
Section 10.06) be deemed to have exchanged interests in the Loans and reimbursement
obligations in respect of disbursements by the L/C Issuer pursuant to any Letters of Credit such
that in lieu of the interest of each Lender in each such Specified Obligation in which it shall
participate as of such date (including such Lender’s interest in the Specified Obligations of each
Loan Party in respect of each such Loan and reimbursement obligation), such Lender shall hold an
interest in every one of the Loans and reimbursement obligations in respect of Letters of Credit
(including the Specified Obligations of each Loan Party in respect of each such Loan and
reimbursement obligation), whether or not such Lender shall previously have participated therein,
equal to such Lender’s CAM Percentage thereof.




          (b) Binding Nature. Each Lender hereby consents and agrees (and each Borrower hereby
consents) to the CAM Exchange, and each Lender agrees that the CAM Exchange shall be binding upon
its successors and assigns and any Person that acquires a participation in its interests in any
Specified Obligation. Each Borrower agrees from time to time to execute and deliver to
Administrative Agent all participation certificates and other instruments and documents as
Administrative Agent shall reasonably request to evidence and confirm the respective interests of
the Lenders after giving effect to the CAM Exchange, and each Lender agrees to surrender any
promissory notes originally received by it in connection with its Loans constituting Specified
Obligations hereunder to Administrative Agent against delivery of new promissory notes evidencing
its interests in the Specified Obligations with respect to the Loans; provided that the failure of
any Borrower to execute or deliver or any Lender to accept any such promissory note, instrument or
document shall not affect the validity or effectiveness of the CAM Exchange.




          (c) Payments Subsequent to CAM Exchange Date. As a result of the CAM Exchange, upon
and after the CAM Exchange Date, each payment received by Administrative Agent pursuant to any Loan
Document in respect of the Specified Obligations, and each distribution made by Administrative
Agent pursuant to any Collateral Documents in respect of

122









 









the Specified Obligations, shall be distributed to the Lenders pro rata in accordance with
their respective CAM Percentages. Any direct payment received by a Lender on or after the CAM
Exchange Date, including by way of set-off, in respect of a Specified Obligation shall be paid over
to Administrative Agent for distribution to the Lenders in accordance herewith.



          (d) Subsequent LC Disbursements. In the event that, on or after the CAM Exchange
Date, the aggregate amount of the Specified Obligations shall change as a result of the making of a
disbursement on a Letter of Credit by the L/C Issuer that is not reimbursed by the applicable
Borrower, then, (i) each Revolving Credit Lender (determined in each case without giving effect to
the CAM Exchange) shall, in accordance with Section 2.03(c), promptly purchase from the L/C
Issuer a participation in such Letter of Credit disbursement in the amount of such Lender’s
applicable pro rata share of such Letter of Credit disbursement (without giving effect to the CAM
Exchange) and (ii) Administrative Agent shall redetermine the CAM Percentages after giving effect
to such Letter of Credit disbursement and the purchase of participations therein by the applicable
Lenders. Each such redetermination shall be binding on each of the Lenders and their successors
and assigns and shall be conclusive, absent manifest error.




[Signature Pages Follow]





123









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 	 	 
	 	 	ASYST TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Stephen S. Schwartz
 

Stephen S. Schwartz
	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST JAPAN, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Stephen S. Schwartz
 

Stephen S. Schwartz
	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST SHINKO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Stephen S. Schwartz
 

Stephen S. Schwartz
	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 






S- 1









 






	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION,

as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Raed Alfayoumi
 

Raed Alfayoumi
	 	 
	 

	 	Title:
	 	Vice President	 	 






S- 2









 






	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION,

as Lender, Swing Line Lender and L/C Issuer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Raed Alfayoumi
 

Raed Alfayoumi
	 	 
	 

	 	Title:
	 	Vice President	 	 






S- 3









 






	 	 	 	 	 	 	 
	 	 	Silicon Valley Bank 

as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Nick Tsiagkas
 

Nick Tsiagkas
	 	 
	 

	 	Title:
	 	Relationship Manager	 	 






S- 4









 






	 	 	 	 	 	 	 
	 	 	Citibank, N.A.

as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Doug Bontemps
 

Doug Bontemps
	 	 
	 

	 	Title:
	 	Vice President	 	 






S- 5









 






	 	 	 	 	 	 	 
	 	 	Citizens Bank NA,

as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ David M. Nackley
 

David M. Nackley
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 







S- 6










 





EXHIBIT A




FORM OF COMMITTED LOAN NOTICE




Date:                     , _____



To: KeyBank National Association, as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of July ___, 2007 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Asyst
Technologies, Inc., a California corporation (the “Company”), Asyst Japan, Inc., a Japanese
corporation (“AJI” ) and Asyst Shinko, Inc. (“ASI” and, together with AJI and the
Company, the “Borrowers”), the Designated Borrowers from time to time party thereto, the
Lenders from time to time party thereto, and KeyBank National Association, as Administrative Agent,
L/C Issuer and Swing Line Lender.



     The Company hereby requests, on behalf of itself or, if applicable, the other Borrower or the
Designated Borrower referenced in item 6 below (the “Applicable Other Borrower”) (select
one):



	 	 	 	 	 	 	 
	o

	 	A Borrowing of [Revolving Credit]
	 	o
	 	A conversion of
	 

	 	[Term] Loans
	 	 	 	[Revolving Credit] [Term] Loans
	 
	 	 	 	 	 	 
	o

	 	A continuation of	 	 	 	 
	 

	 	[Revolving Credit] [Term] Loans	 	 	 	 







	 	1.	 	On            
            
                                                         (a Business Day).
	 
	 	2.	 	In the amount of $                                                             .





FORM OF COMMITTED LOAN NOTICE




A-1









 







3. Type of
Loan and Currency of Loan being borrowed, continued or converted
1 :




	 	 	 	 	 	 	 	 	 
	 

	 	o
	 	Base Rate Loan denominated in Yen
	 	o
	 	Yen LIBOR Rate Loan
	 

	 	o
	 	Base Rate Loan denominated in
	 	o
	 	Dollars LIBOR Rate Loan
	 	 	Dollars	 	 	 	 





4. Nature of Conversion or Continuation:




	 	 	 	 	 
	 

	 	o
	 	Conversion of Base Rate Loan denominated in Yen to Yen LIBOR Rate Loan
	 
	 	 	 	 
	 

	 	o
	 	Conversion of Base Rate Loan denominated in Dollars to Dollar LIBOR Rate Loan
	 
	 	 	 	 
	 

	 	o
	 	Conversion of Yen LIBOR Rate Loan to Base Rate Loan denominated in Yen
	 
	 	 	 	 
	 

	 	o
	 	Conversion of Dollar LIBOR Rate Loan to Base Rate Loan denominated in Dollars
	 
	 	 	 	 
	 

	 	o
	 	Continuation of Yen LIBOR Rate Loan
	 
	 	 	 	 
	 

	 	o
	 	Continuation of Dollar LIBOR Rate Loan





5. For LIBOR Rate Loans: with an Interest Period of months.



6.On behalf of                                                             [insert name of applicable Other/Designated Borro
wer].






 




			
	1	 	For a Base Rate Loan, the interest rate shall be
equal to the Base Rate plus the Applicable Rate for Base Rate
Loans. For a LIBOR Rate Loan, the interest rate shall be equal to the
LIBOR Rate for Yen or the LIBOR Rate for Dollars, as applicable, for such
Interest Period plus the Applicable Rate for LIBOR Loans. For
example:






     (a) Assuming a June 1, 2007 Base Rate Loan borrowing (denominated in
Dollars) under the Revolving Credit Facility and a Consolidated Total
Leverage Ratio of 1:75: 1.00 on such date, the interest rate for such Base
rate Loan would equal 9.25%, calculated as the sum of (i) 8.25% [the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by
KeyBank National Association as its “prime rate”] plus
(ii) 2.00% [the Applicable Rate for Base Rate Loans].




     (b) Assuming a June 1, 2007 LIBOR Rate Loan borrowing (denominated in Yen)
under the Revolving Credit Facility for a one-month Interest Period
commencing June 1, 2007 and a Consolidated Total Leverage Ratio of
2.25:1.00 on such date, the interest rate for such LIBOR Rate Loan would
equal 2.887% calculated as the sum of (i) 0.637% [the rate per annum equal
to the BBA LIBOR, as published by Reuters (or Bloomberg or other
commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately
11:00 a.m., London time on May 30, 3007, for deposits in Yen (for delivery
on June 1, 2007) with a term of one month] plus (ii) 2.25% [the
Applicable Rate for LIBOR Rate Loans].



FORM OF SWING LINE LOAN NOTICE




A-2









 








     [The Revolving Credit Borrowing, if any, requested herein complies with the provisos to the
first sentence of Section 2.01(b) of the Agreement.] 2





 




			
	2	 	Include this sentence in the case of a Revolving
Credit Facility.





FORM OF SWING LINE LOAN NOTICE




A-3









 








     The Borrower hereby represents and warrants that the conditions specified in Sections
4.02(a), (b) and (c) shall be satisfied on and as of the date of the applicable
Credit Extension.



	 	 	 	 	 
	 	 	ASYST TECHNOLOGIES, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 





FORM OF SWING LINE LOAN NOTICE




A-4









 





EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




Date:                     , _____





			
	To:	 	KeyBank National Association, as Swing Line Lender

KeyBank National Association, as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of July ___, 2007 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Asyst
Technologies, Inc., a California corporation (the “Company”), Asyst Japan, Inc., a Japanese
corporation (“AJI” ) and Asyst Shinko, Inc. (“ASI” and, together with AJI and the
Company, the “Borrowers”), the Designated Borrowers from time to time party thereto, the
Lenders from time to time party thereto, and KeyBank National Association, as Administrative Agent,
L/C Issuer and Swing Line Lender.



     The Company hereby requests a Swing Line Loan:




	 	1.	 	On                                                                   
              (a Business Day).


	 
	 	2.	 	In the amount of $                                                              .





     The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(b) of the Agreement.



     The Company hereby represents and warrants that the conditions specified in Sections
4.02(a), (b) and (c) shall be satisfied on and as of the date of the Applicable
Credit Extension.




	 	 	 	 	 
	 	 	ASYST TECHNOLOGIES, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 





FORM OF COMMITTED LOAN NOTICE




B-1









 





EXHIBIT C-1




FORM OF TERM NOTE




                    , ____




          FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
                                         or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of the Term Loan from
time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of
July ___, 2007 (as amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Asyst Technologies, Inc., a California corporation (the “Company”), Asyst
Japan, Inc., a Japanese corporation (“AJI” ) and Asyst Shinko, Inc. (“ASI”), the
Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto,
and KeyBank National Association, as Administrative Agent, L/C Issuer and Swing Line Lender.




          The Borrower promises to pay interest on the unpaid principal amount of the Term Loan made by
the Lender from the date of such Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Agreement. All payments of principal and interest shall
be made to the Administrative Agent for the account of the Lender in the currency in which the Term
Loan was denominated and in Same Day Funds at the Administrative Agent’s Office for such currency.
If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be
paid upon demand, from the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.




          This Term Note is one of the Term Notes referred to in the Agreement, is entitled to the
benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. This Term Note is also entitled to the benefits of each Guaranty and is secured
by the Collateral. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this Term Note shall become, or
may be declared to be, immediately due and payable all as provided in the Agreement. The Term Loan
made by the Lender shall be evidenced by one or more loan accounts or records maintained by the
Lender in the ordinary course of business. The Lender may also attach schedules to this Term Note
and endorse thereon the date, amount, currency and maturity of its Loans and payments with respect
thereto.




          The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Term Note.




FORM OF TERM NOTE




C1-1









 








          THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.




	 	 	 	 	 
	 	 	[BORROWER]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 





FORM OF TERM NOTE




C1-2









 








LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Currency	 	 	 	Amount of	 	Outstanding	 	 
	 	 	 	 	and	 	End of	 	Principal or	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Interest Paid	 	Balance This	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	This Date	 	Date	 	Made By
	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 





FORM OF TERM NOTE




C1-3









 





EXHIBIT C-2




FORM OF [REVOLVING CREDIT] [SWING LINE] NOTE




                    




     FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
                                         or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each [Revolving
Credit] [Swing Line] Loan from time to time made by the Lender to the Borrower under that certain
Credit Agreement, dated as of July ___, 2007 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement;” the terms defined therein
being used herein as therein defined), among Asyst Technologies, Inc., a California corporation
(the “Company”), Asyst Japan, Inc., a Japanese corporation (“AJI” ) and Asyst
Shinko, Inc. (“ASI” and, together with AJI and the Company, the “Borrowers”), the
Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto,
and KeyBank National Association, as Administrative Agent, L/C Issuer and Swing Line Lender.



     The Borrower promises to pay interest on the unpaid principal amount of each [Revolving
Credit] [Swing Line] Loan from the date of such Loan until such principal amount is paid in full,
at such interest rates and at such times as provided in the Agreement. [Except as otherwise
provided in Section 2.04(f) of the Agreement with respect to Swing Line Loans, a][A]ll
payments of principal and interest shall be made to the Administrative Agent for the account of the
Lender in the currency in which such [Revolving Credit] [Swing Line] Loan was denominated and in
Same Day Funds at the Administrative Agent’s Office for such currency. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Agreement.



     This [Revolving Credit] [Swing Line] Note is one of the [Revolving Credit] [Swing Line] Notes
referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in
part subject to the terms and conditions provided therein. This [Revolving Credit] [Swing Line]
Note is also entitled to the benefits of [each Guaranty][the US Subsidiary Guaranty] and is secured
by [the Collateral] [the US Collateral]. Upon the occurrence and continuation of one or more of
the Events of Default specified in the Agreement, all amounts then remaining unpaid on this
[Revolving Credit] [Swing Line] Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. [Revolving Credit] [Swing Line] Loans made by the Lender
shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this [Revolving Credit] [Swing Line]
Note and endorse thereon the date, amount, currency and maturity of its Loans and payments with
respect thereto.



FORM OF REVOLVING CREDIT NOTE




C2 -1









 





     The Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this
[Revolving Credit] [Swing Line] Note.



FORM OF REVOLVING CREDIT NOTE




C2 -2









 








     THIS [REVOLVING CREDIT] [SWING LINE] NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



	 	 	 	 	 
	 	 	[BORROWER]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 





FORM OF REVOLVING CREDIT NOTE




C2 -3









 








LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	 	 	 	 	 	 	Principal	 	Outstanding	 	 
	 	 	 	 	Currency and	 	End of	 	or Interest	 	Principal	 	 
	 	 	 	 	Amount	 	Interest	 	Paid This	 	Balance	 	Notation
	Date	 	Type of Loan Made	 	of Loan Made	 	Period	 	Date	 	This Date	 	Made By
	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 
	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    
	 	                    






FORM OF REVOLVING CREDIT NOTE




C2 -4









 





EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                      ,



To: KeyBank National Association, as Administrative Agent



Ladies and Gentlemen:




          Reference is made to that certain Credit Agreement, dated as of July ___, 2007 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Asyst
Technologies, Inc., a California corporation (the “Company”), Asyst Japan, Inc., a Japanese
corporation (“AJI” ) and Asyst Shinko, Inc. (“ASI” and, together with AJI and the
Company, the “Borrowers”), the Designated Borrowers from time to time party thereto, the
Lenders from time to time party thereto, and KeyBank National Association, as Administrative Agent,
L/C Issuer and Swing Line Lender.




          The undersigned Responsible Officer 3 , acting in such capacity and position on behalf
of the Company, hereby certifies as of the date hereof that he/she is the
                                                             of the Company, and that, as such, he/she is authorized to
execute and deliver this Certificate to the Administrative Agent on the behalf of the Company, and
that:




[Use following paragraph 1 for fiscal year-end financial

statements]




          1. Attached hereto as Schedule 1 are (a) the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Company ended as of
the above date, together with the report and opinion of an independent certified public accountant
required by such section, (b) the consolidating balance sheet of the Company and its Subsidiaries
as at the end of such fiscal year and the related consolidating statements of income or operations,
shareholders’ equity and cash flows for such fiscal year, and (c) financial statements of AJI and
ASI prepared in compliance with the Company Law (Law No. 86 of 2005, as amended) of Japan. Such
consolidating statements are fairly stated in all material respects when considered in relation to
the consolidated financial statements of the Company and its Subsidiaries.






 




			
	3	 	This Certificate should be from the Chief Executive
Officer, Chief Financial Officer, Treasurer or Controller of the Company.





FORM OF COMPLIANCE CERTIFICATE




D-1









 





[Use following paragraph 1 for fiscal quarter-end financial

statements]




          1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Company ended as of the
above date. Such financial statements fairly present the financial condition, results of
operations, shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance
with GAAP as at such date and for such period, subject only to normal year-end audit adjustments
and the absence of footnotes.




          2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Company and its Subsidiaries during the accounting period
covered by the attached financial statements.




          3. A review of the activities of the Company and its Subsidiaries during such fiscal period
has been made under the supervision of the undersigned with a view to determining whether during
such fiscal period the Company and its Subsidiaries performed and observed all its Obligations
under the Loan Documents, and




[select one:]




          [to the best knowledge of the undersigned during such fiscal period, the Company performed and
observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]




—or—




          [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]




          4. The representations and warranties of (i) the Borrowers contained in Article V of
the Agreement and (ii) each Loan Party contained in each other Loan Document or in any document
furnished at any time under or in connection with the Loan Documents, are true and correct on and
as of the date hereof, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such earlier date, and
except that for purposes of this Compliance Certificate, the representations and warranties
contained in clauses (a) and (b) of Section 5.05 of the Agreement shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 6.01 of the Agreement, including the statements in
connection with which this Compliance Certificate is delivered.




          5. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate. The line item descriptions
on the attached Schedule 2 are in summary form for ease of use only and the provisions of
the related definitions shall control.




FORM OF COMPLIANCE CERTIFICATE



D-2









 





          IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of                                         ,                    .




	 	 	 	 	 
	 	 	ASYST TECHNOLOGIES, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 




FORM OF COMPLIANCE CERTIFICATE




D-3










 





For the Quarter/Year ended                     , ____ (“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




	 	 	 	 	 
	I. Section 7.11(a) – Consolidated Total Leverage Ratio.
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated Funded Indebtedness at Statement Date
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	B. Consolidated EBITDA for Measurement Period ending on above date (“Subject Period”):
	 	 	 	 
	 
	 	 	 	 
	1. Consolidated Net Income for Subject Period:
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	2. Consolidated Interest Charges for Subject Period:
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	3. Provision for Federal, state, local and foreign
income taxes for Subject Period:
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	4. Depreciation expenses for Subject Period
(including impairment of goodwill as determined
under FAS 143):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	5. Amortization expenses for Subject Period:
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	6. Non-cash stock based compensation charges:
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	7. Non-cash expense determined pursuant to FAS 123R
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	8. Non-cash charges resulting from write-off of
capitalized expenses relating to issuance of
Existing Credit Agreement and Subordinated Notes
	 	 	 	 
	 
	 	 	 	 
	9. Other non-cash, non-recurring charges
	 	 	 	 
	 
	 	 	 	 
	10. Income Tax credits for Subject Period:
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	11. Consolidated EBITDA (Lines II.A.1 + 2 + 3 + 4 +
5 + 6 + 7 + 8 + 9 - 10):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	C. Consolidated Total Leverage Ratio (Line I.A  ̧ Line I.B.10):
	 	____ to 1
	 
	 	 	 	 
	Maximum permitted:
	 	 	4.00 to 1	 




FORM OF COMPLIANCE CERTIFICATE


D-4









 






	 	 	 	 	 
	II. Section 7.11 (b) – Consolidated Senior Leverage Ratio.
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated Senior Indebtedness at Statement Date
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	B. Consolidated EBITDA for Subject Period (Line I.B.10 above):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	C. Consolidated Senior Leverage Ratio (Line II.A  ̧ Line II.B):
	 	____ to 1
	 
	 	 	 	 
	Maximum permitted:
	 	 	3.00 to 1	 
	 
	 	 	 	 
	III. Section 7.11(c) — Consolidated Fixed Charge Coverage Ratio
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated EBITDA for Subject Period (Line I.B.10 above):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	B. Capital Expenditures for Subject Period:
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	C. Consolidated Interest Charges paid or payable in cash for Subject Period:
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	D. Federal, State, Local and Foreign Cash Income Taxes paid (less the amount of any income tax
refunds actually received):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	E. Consolidated Fixed Charge Coverage Ratio (Line III.A  ̧ [Line III.B + Line III.C] + D):
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Minimum required:
	 	 	1.50:1	 





 FORM OF COMPLIANCE CERTIFICATE

D-5









 






	 	 	 	 	 
	IV. Section 7.11 — Capital Expenditures.
	 	 	 	 
	 
	 	 	 	 
	A. Capital Expenditures made during fiscal year to date:
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	B. Maximum permitted Capital Expenditures Permitted:
	 	$	25,000,0000	 
	 
	 	 	 	 
	C. Excess (deficient) for covenant compliance
(Line IV.B – IV.A):
	 	$	 	 
	 
	 	 	 	 





FORM OF COMPLIANCE CERTIFICATE




D-6









 








EXHIBIT E




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of
the Effective Date set forth below and is entered into by and between [the][each]4
Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each] 5
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and
agreed that the rights and obligations of [the Assignors][the Assignees] 6hereunder are
several and not joint.] 7 Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (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 Assumption as if set forth herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], 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][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] 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][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities 8) 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)][the respective Assignors (in their respective capacities as Lenders)]
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,





 




			
	4	 	For bracketed language here and elsewhere in this
form relating to the Assignor(s), if the assignment is from a single Assignor,
choose the first bracketed language. If the assignment is from multiple
Assignors, choose the second bracketed language.
	 
	5	 	For bracketed language here and elsewhere in this
form relating to the Assignee(s), if the assignment is to a single Assignee,
choose the first bracketed language. If the assignment is to multiple
Assignees, choose the second bracketed language.
	 
	6	 	Select as appropriate.
	 
	7	 	Include bracketed language if there are either
multiple Assignors or multiple Assignees.
	 
	8	 	Include all applicable subfacilities.





ASSIGNMENT AND ASSUMPTION




E-1









 







including, but not limited to, 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 by
[the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above
being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale
and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by [the][any] Assignor.




	 	 	 	 	 	 	 
	1.

	 	Assignor[s]:	 	 	 	 
	 

	 	 	 

	 
	 
	 	 	 	 	 	 
	 

	 	 	 

	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee[s]:	 	 	 	 
	 

	 	 	 

	 
	 
	 	 	 	 	 	 
	 

	 	 	 

	 







	 	 	[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	 
	3.	 	Borrower(s): Asyst Technologies, Inc., a California corporation, Asyst Japan,
Inc., a Japanese corporation, Asyst Shinko, Inc., a Japanese
corporation, and the Designated Borrowers from time to time party to
the Credit Agreement
	 
	4.	 	Administrative Agent: KeyBank National Association, as the administrative agent under
the Credit Agreement
	 
	5.	 	Credit Agreement: Credit Agreement, dated as of July ___, 2007 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
Asyst Technologies, Inc., a California corporation (the “Company”), Asyst Japan, Inc.,
a Japanese corporation (“AJI” ) and Asyst Shinko, Inc. (“ASI” and, together
with AJI and the Company, the “Borrowers”), the Designated Borrowers from time to time
party thereto, the Lenders from time to time party thereto, and KeyBank National Association,
as Administrative Agent, L/C Issuer and Swing Line Lender.
	 
	6.	 	Assigned Interest[s]:





ASSIGNMENT AND ASSUMPTION




E-2









 








	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	Percentage	 	 
	 	 	 	 	 	 	 	 	 	 	Commitment/	 	Amount of	 	Assigned of	 	 
	 	 	 	 	 	 	Facility	 	Loans	 	Commitment/Loans	 	Commitment/	 	CUSIP
	Assignor[s]	 	Assignee[s]	 	Assigned	 	for all Lenders 9	 	Assigned	 	Loans 10	 	Number
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 




[7. Trade Date:                     ] 11



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




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



	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	

 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	 	 
	 	 	 
	 	 	 
	 





 




			
	9	 	Amounts in this column and in the column immediately
to the right to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
	 
	10	 	Set forth, to at least 9 decimals, as a percentage
of the Commitment/Loans of all Lenders thereunder.
	 
	11	 	To be completed if the Assignor and the Assignee
intend that the minimum assignment amount is to be determined as of the Trade
Date.





ASSIGNMENT AND ASSUMPTION




E-3









 








	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	[Consented to and] 12 Accepted:

KEYBANK NATIONAL ASSOCIATION, as

  Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	[Consented to:] 13



ASYST TECHNOLOGIES, INC. 

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	12	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	13	 	To be added only if the consent of the Company
and/or other parties (e.g. Swing Line Lender, L/C Issuer) is required by the
terms of the Credit Agreement.





ASSIGNMENT AND ASSUMPTION




E-4









 








ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




Asyst Technologies, Inc.

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] 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
Assumption 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 execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) 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][Each] 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
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii), (v) and (vi) and (vii) of the Credit Agreement (subject
to such consents, if any, as may be required under Section 10.06(b)(iii) of the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect
to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either
it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned
Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit
Agreement, and has received or has been accorded the opportunity to receive copies of the most
recent financial statements delivered pursuant to Section ___thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it
has, independently and without reliance upon the Administrative Agent 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 Assignment and Assumption and to purchase [the][such] Assigned
Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by
[the][such] Assignee; and (b) agrees that (i) it will, independently and without




ASSIGNMENT AND ASSUMPTION




E-5









 







reliance upon the Administrative Agent, [the][any] 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 in taking or not taking action under the Loan Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of the 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][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.




          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption 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 Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.




ASSIGNMENT AND ASSUMPTION





E-6









 




EXHIBIT F-1





COMPANY GUARANTY




     This COMPANY GUARANTY, dated as of July 27, 2007 (as amended, supplemented, amended and
restated or otherwise modified from time to time, this “Guaranty”) is made by ASYST
TECHNOLOGIES, INC., a California corporation (the “Company”), in favor of KEYBANK NATIONAL
ASSOCIATION, as administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H:




     WHEREAS, pursuant to a Credit Agreement, dated as of July 27, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Company, Asyst Japan, Inc., a Japanese corporation (“AJI”), Asyst Shinko, Inc., a
Japanese corporation (“ASI”), and certain other Subsidiaries of the Company party thereto
from time to time (each a “Designated Borrower” and, collectively with the Company, AJI and
ASI, the “Borrowers”), the Lenders and the Administrative Agent, the Lenders and the L/C
Issuer have extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, as a condition precedent to the making of the Credit Extensions under the Credit
Agreement, the Company is required to execute and deliver this Guaranty;



     NOW THEREFORE, for good and valuable consideration the receipt of which is hereby
acknowledged, and in order to induce the Lenders and the L/C Issuer to make Credit Extensions to
the Borrowers, and to induce Secured Parties to enter into Swap Contracts, the Company agrees, for
the benefit of each Secured Party, as follows:



ARTICLE I



DEFINITIONS




     SECTION 1.1. Certain Terms. The following terms when used in this Guaranty,
including its preamble and recitals, shall have the following meanings (such definitions to be
equally applicable to the singular and plural forms thereof):



     “Administrative Agent” is defined in the preamble.



     “AJI” is defined in the first recital.



     “ASI” is defined in the first recital.



     “Borrowers” is defined in the first recital.



     “Company” is defined in the preamble.



     “Credit Agreement” is defined in the first recital.


 Company Guaranty




 









 





     “Designated Borrowers” is defined in the first recital.



     “Guaranty” is defined in the preamble.



     “Termination Date” means the date on which all Obligations have been paid in full in
cash, all Letters of Credit have been terminated or have expired (or have been Cash
Collateralized), all Secured Hedge Agreements have been terminated or have otherwise been provided
for on terms reasonably satisfactory to the parties, and all Commitments shall have been
terminated.



     SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Guaranty, including its preamble and recitals, have
the meanings provided in the Credit Agreement.



ARTICLE II



GUARANTY PROVISIONS




     SECTION 2.1. Guaranty. The Company hereby absolutely, unconditionally and
irrevocably




     (a) guarantees the full and punctual payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise, of all Obligations of
each other Loan Party now or hereafter existing, whether for principal, interest (including
interest accruing at the then applicable rate provided in the Credit Agreement after the
occurrence of any Default set forth in Section 8.01(f) or (g) of the Credit Agreement,
whether or not a claim for post-filing or post-petition interest is allowed under applicable
Law following the institution of a proceeding under bankruptcy, insolvency or similar Laws),
fees, reimbursement obligations with respect to the Letters of Credit or otherwise, expenses
or otherwise (including all such amounts which would become due but for the operation of the
automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a),
and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. §502(b) and §506(b)); and




     (b) indemnifies and holds harmless each Secured Party for any and all costs and
expenses (including reasonable attorney’s fees and expenses) incurred by such Secured Party
in enforcing any rights under this Guaranty.


provided that the Company shall only be liable under this Guaranty for the maximum amount
of such liability that can be hereby incurred without rendering this Guaranty, as it relates to the
Company, voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer,
and not for any greater amount. This Guaranty constitutes a guaranty of payment when due and not
of collection, and the Company specifically agrees that it shall not be necessary or required that
any Secured Party exercise any right, assert any claim or demand or enforce any remedy whatsoever
against any other Loan Party or any other Person before or as a condition to the obligations of the
Company hereunder.



 Company Guaranty




-2-









 








     SECTION 2.2. Payments Set Aside. To the extent that any payment by or on behalf of
the Company is made to the Administrative Agent, the L/C Issuer, any Lender or any other Secured
Party, or the Administrative Agent, the L/C Issuer, any Lender or any other Secured Party exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer,
such Lender or such Secured Party in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then to
the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred.



     SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects be a
continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full
force and effect until the Termination Date has occurred. The Company guarantees that the
Obligations of each other Loan Party will be paid strictly in accordance with the terms of each
Loan Document under which they arise, regardless of any Law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with
respect thereto. The liability of the Company under this Guaranty shall be absolute, unconditional
and irrevocable irrespective of:




     (a) any lack of validity, legality or enforceability of any Loan Document;




     (b) the failure of any Secured Party




     (i) to assert any claim or demand or to enforce any right or remedy against any
Loan Party or any other Person (including any other guarantor) under the provisions
of any Loan Document or otherwise, or




     (ii) to exercise any right or remedy against any other guarantor (including any
Subsidiary Guarantor) of, or Collateral securing, any Obligations;




     (c) any change in the time, manner or place of payment of, or in any other term of,
all or any part of the Obligations, or any other extension, compromise or renewal of any
Obligation;




     (d) any reduction, limitation, impairment or termination of any Obligations for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and the Company hereby waives any right to or claim of) any defense
or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other
event or occurrence affecting, any Obligations or otherwise;




     (e) any amendment to, rescission, waiver, or other modification of, or any consent to
or departure from, any of the terms of any Loan Document;




     (f) any addition, exchange or release of any Collateral or of any Person that is (or
will become) a guarantor (including the Company hereunder) of the Obligations, or any


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surrender or non-perfection of any Collateral, or any amendment to or waiver or release or
addition to, or consent to or departure from, any other guaranty held by any Secured Party
securing any of the Obligations; or




     (g) any other circumstance which might otherwise constitute a defense available to, or
a legal or equitable discharge of, any other Loan Party, any surety or any guarantor.



     SECTION 2.4. Setoff. If an Event of Default shall have occurred and be continuing,
each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any
time and from time to time, after obtaining the prior written consent of the Administrative Agent,
to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or
any such Affiliate to or for the credit or the account of the Company against any and all of the
obligations of the Company now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Guaranty or any other Loan Document and although such
obligations of the Company may be contingent or unmatured or are owed to a branch or office of such
Lender or the L/C Issuer different from the branch or office holding such deposit or obligated on
such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that
such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Company and the Administrative Agent promptly after any such setoff and
application; provided that the failure to give such notice shall not affect the validity of
such setoff and application.



     SECTION 2.5. Waiver, etc. The Company hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations and this Guaranty and any
requirement that any Secured Party protect, secure, perfect or insure any Lien, or any property
subject thereto, or exhaust any right or take any action against any Loan Party or any other Person
(including any other guarantor) or entity or any Collateral securing the Obligations, as the case
may be. The Company waives any rights and defenses that are or may become available to the Company
by reason of §§ 2787 to 2855, inclusive, and §§ 2899 and 3433 of the California Civil Code. As
provided below, this Guaranty shall be governed by, and construed in accordance with, the Laws of
the State of New York. The foregoing waivers and the provisions hereinafter set forth in this
Guaranty which pertain to California Law are included solely out of an abundance of caution, and
shall not be construed to mean that any of the above-referenced provisions of California Law are in
any way applicable to this Guaranty or the Obligations.



     SECTION 2.6. Postponement of Subrogation, etc. The Company agrees that it will not
exercise any rights which it may acquire by way of rights of subrogation under any Loan Document to
which it is a party, nor shall the Company seek or be entitled to seek any contribution or
reimbursement from any Loan Party, in respect of any payment made under any Loan Document or
otherwise, until following the Termination Date. Any amount paid to the Company on account of any
such subrogation rights prior to the Termination Date shall be held in trust for the benefit of the
Secured Parties and shall immediately be paid and turned over to the Administrative Agent for the
benefit of the Secured Parties in the exact form received by the


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Company (duly endorsed in favor of
the Administrative Agent, if required), to be credited and applied against the Obligations, whether
matured or unmatured, in accordance with Section 2.7; provided that if the Company
has made payment to the Secured Parties of all or any part of the Obligations and the Termination
Date has occurred, then at the Company’s request, the Administrative Agent (on behalf of the
Secured Parties) will, at the expense of the Company, execute and deliver to the Company
appropriate documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to the Company of an interest in the Obligations resulting
from such payment. In furtherance of the foregoing, at all times prior to the Termination Date,
the Company shall refrain from taking any action or commencing any proceeding against any other
Loan Party (or its successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in respect of payments made under this Guaranty to any Secured
Party.



     SECTION 2.7. Payments; Application. The Company hereby agrees with each Secured
Party that all payments made by the Company hereunder will be made in Dollars to the Administrative
Agent, without setoff, counterclaim or other defense and in accordance with Sections 3.01 and 8.03
of the Credit Agreement, free and clear of and without deduction for any Taxes, the Company hereby
agreeing to comply with and be bound by the provisions of Sections 3.01 and 8.03 of the Credit
Agreement in respect of all payments made by it hereunder and the provisions of which Sections are
hereby incorporated into and made a part of this Guaranty by this reference as if set forth herein;
provided that references to “this Agreement” in such Sections shall be deemed to be
references to this Guaranty.



     SECTION 2.8. Additional Guarantor Waivers and Agreements.




     (a) The Company understands and acknowledges that if the Secured Parties foreclose
judicially or nonjudicially against any real property security for the Obligations, that
foreclosure could impair or destroy any ability that the Company may have to seek
reimbursement, contribution, or indemnification from the other Loan Parties or others based
on any right the Company may have of subrogation, reimbursement, contribution, or
indemnification for any amounts paid by the Company under this Guaranty. The Company
further understands and acknowledges that in the absence of this paragraph, such potential
impairment or destruction of the Company’s rights, if any, may entitle the Company to assert
a defense to this Guaranty based on Section 580d of the California Code of Civil Procedure
as interpreted in Union Bank v. Gradsky, 265 Cal. App. 2d 40 (1968). By executing
this Guaranty, the Company freely, irrevocably, and unconditionally (i) waives and
relinquishes that defense and agrees that the Company will be fully liable under this
Guaranty even though the Secured Parties may foreclose, either by judicial foreclosure or by
exercise of power of sale, any deed of trust securing the Obligations; (ii) agrees that the
Company will not assert that defense in any action or proceeding which the Secured Parties
may commence to enforce this Guaranty; (iii) acknowledges and agrees that the rights and
defenses waived by the Company in this Guaranty include any right or defense that the
Company may have or be entitled to assert based upon or arising out of any one or more of §§
580a, 580b, 580d, or 726 of the California Code of Civil Procedure or § 2848 of the
California Civil Code; and (iv) acknowledges and agrees that the Secured Parties are relying
on this waiver in


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creating the Obligations, and that this waiver is a material part of the
consideration which the Secured Parties are receiving for creating the Obligations.




     (b) The Company waives all rights and defenses that it may have because any of the
Obligations is secured by real property. This means, among other things, that (i) the
Secured Parties may collect from the Company without first foreclosing on any real or
personal property Collateral pledged by the other Loan Parties; and (ii) if the Secured
Parties foreclose on any real property Collateral pledged by the other Loan Parties (A) the
amount of the Obligations may be reduced only by the price for which that Collateral is sold
at the foreclosure sale, even if the Collateral is worth more than the sale price, and (B)
the Secured Parties may collect from the Company even if the Secured Parties, by foreclosing
on the real property Collateral, have destroyed any right the Company may have to collect
from the other Loan Parties. This is an unconditional and irrevocable waiver of any rights
and defenses the Company may have because any of the Obligations is secured by real
property. These rights and defenses include, but are not limited to, any rights or defenses
based upon § 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.




     (c) The Company waives any right or defense it may have at law or equity, including
California Code of Civil Procedure § 580a, to a fair market value hearing or action to
determine a deficiency judgment after a foreclosure.



ARTICLE III



REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into the Credit Agreement and make Credit
Extensions thereunder, and to induce Secured Parties to enter into Swap Contracts, the Company
represents and warrants to each Secured Party as set forth below.



     SECTION 3.1. Credit Agreement Representations and Warranties. The representations
and warranties contained in Article V of the Credit Agreement, insofar as the representations and
warranties contained therein are applicable to the Company and its properties, are true and correct
in all material respects, each such representation and warranty set forth in such Article (insofar
as applicable as aforesaid) and all other terms of the Credit Agreement to which reference is made
therein, together with all related definitions and ancillary provisions, being hereby incorporated
into this Guaranty by reference as though specifically set forth in this Article.



     SECTION 3.2. Financial Condition, etc. The Company has knowledge of each other Loan
Party’s financial condition and affairs and has adequate means to obtain from such other Loan Party
on an ongoing basis information relating thereto and to such Loan Party’s ability to pay and
perform the Obligations, and agrees to assume the responsibility for keeping, and to keep, so
informed for so long as this Guaranty is in effect. The Company acknowledges and agrees that the
Secured Parties shall have no obligation to investigate the financial condition or affairs of any
Loan Party for the benefit of the Company nor to advise the Company of any fact respecting, or any
change in, the financial condition or affairs of any other Loan Party that might


 Company Guaranty




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become known to
any Secured Party at any time, whether or not such Secured Party knows or believes or has reason to
know or believe that any such fact or change is unknown to the Company, or might (or does)
materially increase the risk of the Company as a guarantor, or might (or would) affect the
willingness of the Company to continue as a guarantor of the Obligations.



ARTICLE IV



MISCELLANEOUS PROVISIONS




     SECTION 4.1. Loan Document. This Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and provisions thereof, including Article X
thereof. To the extent of any conflict between the terms contained in this Guaranty and the terms
contained in the Credit Agreement, the terms of the Credit Agreement shall control.



     SECTION 4.2. Binding on Successors, Transferees and Assigns; Assignment. This
Guaranty shall remain in full force and effect until the Termination Date has occurred, binding
upon the Company and its successors, transferees and assigns and shall inure to the benefit of and
be enforceable by each Secured Party and their respective successors, transferees and assigns;
provided that the Company may not (unless otherwise permitted under the terms of the Credit
Agreement) assign any of its obligations hereunder without the prior written consent of all
Lenders.



     SECTION 4.3. Amendments, etc. No amendment to or waiver of any provision of this
Guaranty, nor consent to any departure by the Company from its obligations under this Guaranty,
shall in any event be effective unless the same shall be in writing and signed by the
Administrative Agent (on behalf of the Lenders or the Required Lenders, as the case may be,
pursuant to Section 10.01 of the Credit Agreement) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.



     SECTION 4.4. Notices. All notices and other communications provided for hereunder
shall be in writing or by facsimile and addressed, delivered or transmitted to the appropriate
party at the address or facsimile number of such party specified in the Credit Agreement or at such
other address or facsimile number as may be designated by such party in a notice to the other
party. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed
and sent by pre-paid courier service, shall be deemed given when received; any such notice, if
transmitted by facsimile, shall be deemed given when the confirmation of transmission thereof is
received by the transmitter.



     SECTION 4.5. Release of Guarantor. Upon the occurrence of the Termination Date, this
Guaranty and all obligations of the Company hereunder shall terminate, without delivery of any
instrument or performance of any act by any party.



     SECTION 4.6. No Waiver; Remedies. In addition to, and not in limitation of,
Sections 2.3 and 2.5, no failure on the part of any Secured Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of


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any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by Law.



     SECTION 4.7. Captions. Section captions used in this Guaranty are for convenience of
reference only, and shall not affect the construction of this Guaranty.



     SECTION 4.8. Severability. If any provision of this Guaranty or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Guaranty and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     SECTION 4.9. Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




     (b) SUBMISSION TO JURISDICTION. THE COMPANY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS 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 GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE 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 BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST THE COMPANY OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. THE COMPANY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING


 Company Guaranty




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ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT.



     SECTION 4.10. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 GUARANTY OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 GUARANTY AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     SECTION 4.11. California Judicial Reference. If any action or proceeding is filed in
a court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is
hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section
638 to a referee (who shall be a single active or retired judge) to hear and determine all of the
issues in such action or proceeding (whether of fact or of Law) and to report a statement of
decision, provided that at the option of any party to such proceeding, any such issues
pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section
1281.8 shall be heard and determined by the court; and (b) without limiting the generality of
Section 10.04 of the Credit Agreement, the Company shall be solely responsible to pay all fees and
expenses of any referee appointed in such action or proceeding.



     SECTION 4.12. Counterparts. This Guaranty may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.



     SECTION 4.13. Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency
into another currency, the rate of exchange used shall be that at which in accordance


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with normal
banking procedures the Administrative Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is given. The obligation of
the Company in respect of any such sum due from it to the Administrative Agent or the Lenders
hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which such sum is denominated in accordance with
the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only
to the extent that on the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from the Company in the Agreement Currency, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the
Person to whom such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to the Company (or to
any other Person who may be entitled thereto under applicable law).



     SECTION 4.14. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.


 Company Guaranty




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     IN WITNESS WHEREOF, the Company has caused this Guaranty to be duly executed and
delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	ASYST TECHNOLOGIES, INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 


 Company Guaranty




-11-









 






	 	 	 	 	 



	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:



KEYBANK NATIONAL ASSOCIATION

  as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



Company Guaranty





-12-









 




EXHIBIT
F-2




US SUBSIDIARY GUARANTY




     This US SUBSIDIARY GUARANTY, dated as of July 27, 2007 (as amended, supplemented, amended and
restated or otherwise modified from time to time, this “Guaranty”), is made by each US
Subsidiary of ASYST TECHNOLOGIES, INC., a California corporation (the “Company”), from time
to time party hereto (each individually, a “Guarantor” and, collectively, the
“Guarantors”), in favor of KEYBANK NATIONAL ASSOCIATION, as administrative agent (together
with its successor(s) thereto in such capacity, the “Administrative Agent”) for each of the
Secured Parties.



W I T N E S S E T H:




     WHEREAS, pursuant to a Credit Agreement, dated as of July 27, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Company, Asyst Japan, Inc., a Japanese corporation (“AJI”), Asyst Shinko, Inc., a
Japanese corporation (“ASI”),and certain other Subsidiaries of the Company party thereto
from time to time (each a “Designated Borrower” and, collectively with the Company, AJI and
ASI, the “Borrowers”), the Lenders and the Administrative Agent, the Lenders and the L/C
Issuer have extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, as a condition precedent to the making of the Credit Extensions under the Credit
Agreement, each Guarantor is required to execute and deliver this Guaranty.



     NOW, THEREFORE, for good and valuable consideration the receipt of which is hereby
acknowledged, and in order to induce the Lenders and the L/C Issuer to make Credit Extensions to
the Borrowers, and to induce Secured Parties to enter into Swap Contracts, each Guarantor jointly
and severally agrees, for the benefit of each Secured Party, as follows:



ARTICLE I



DEFINITIONS




     SECTION 1.1. Certain Terms. The following terms when used in this Guaranty,
including its preamble and recitals, shall have the following meanings (such definitions to be
equally applicable to the singular and plural forms thereof):



     “Administrative Agent” is defined in the preamble.



     “AJI” is defined in the first recital.



     “ASI” is defined in the first recital.



     “Borrowers” is defined in the preamble.



     “Company” is defined in the preamble.



 









 





     “Credit Agreement” is defined in the first recital.



     “Guarantor” and “Guarantors” are defined in the preamble.



     “Guaranty” is defined in the preamble.



     “Termination Date” means the date on which all Obligations have been paid in full in
cash, all Letters of Credit have been terminated or have expired (or have been Cash
Collateralized), all Secured Hedge Agreements have been terminated or have otherwise been provided
for on terms reasonably satisfactory to the parties, and all Commitments shall have been
terminated.



     SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Guaranty, including its preamble and recitals, have
the meanings provided in the Credit Agreement.



ARTICLE II



GUARANTY PROVISIONS




     SECTION 2.1. Guaranty. Each Guarantor hereby jointly and severally absolutely,
unconditionally and irrevocably




     (a) guarantees the full and punctual payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise, of all Obligations now
or hereafter existing, whether for principal, interest (including interest accruing at the
then applicable rate provided in the Credit Agreement after the occurrence of any Default
set forth in Section 8.01(f) or (g) of the Credit Agreement, whether or not a claim for
post-filing or post-petition interest is allowed under applicable Law following the
institution of a proceeding under bankruptcy, insolvency or similar Laws), fees,
reimbursement obligations with respect to the Letters of Credit or otherwise, expenses or
otherwise (including all such amounts which would become due but for the operation of the
automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a),
and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. §502(b) and §506(b)); and




     (b) indemnifies and holds harmless each Secured Party for any and all costs and
expenses (including reasonable attorney’s fees and expenses) incurred by such Secured Party
in enforcing any rights under this Guaranty.


provided that each Guarantor shall only be liable under this Guaranty for the maximum
amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates
to such Guarantor, voidable under applicable Law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and each Guarantor specifically agrees that it shall not be necessary or
required that any Secured Party exercise any right, assert any claim or demand or enforce any


2









 






remedy whatsoever against any Loan Party or any other Person before or as a condition to the
obligations of such Guarantor hereunder.




     SECTION 2.2. Payments Set Aside. To the extent that any payment by or on behalf of
any Guarantor is made to the Administrative Agent, the L/C Issuer, any Lender or any other Secured
Party, or the Administrative Agent, the L/C Issuer, any Lender or any other Secured Party exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer,
such Lender or such Secured Party in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then to
the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred.



     SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects be a
continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full
force and effect until the Termination Date has occurred. Each Guarantor jointly and severally
guarantees that the Obligations will be paid strictly in accordance with the terms of each Loan
Document under which they arise, regardless of any Law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with
respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several,
absolute, unconditional and irrevocable irrespective of:




     (a) any lack of validity, legality or enforceability of any Loan Document;




     (b) the failure of any Secured Party




     (i) to assert any claim or demand or to enforce any right or remedy against any
Loan Party or any other Person (including any other guarantor) under the provisions
of any Loan Document or otherwise, or




     (ii) to exercise any right or remedy against any other guarantor (including any
of the Company or any other Subsidiary Guarantor) of, or Collateral securing, any
Obligations;




     (c) any change in the time, manner or place of payment of, or in any other term of, all
or any part of the Obligations, or any other extension, compromise or renewal of any
Obligation;




     (d) any reduction, limitation, impairment or termination of any Obligations for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and each Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Obligations or otherwise;



3









 






     (e) any amendment to, rescission, waiver, or other modification of, or any consent to
or departure from, any of the terms of any Loan Document;




     (f) any addition, exchange or release of any Collateral or of any Person that is (or
will become) a guarantor (including a Guarantor hereunder) of the Obligations, or any
surrender or non-perfection of any Collateral, or any amendment to or waiver or release or
addition to, or consent to or departure from, any other guaranty held by any Secured Party
securing any of the Obligations; or




     (g) any other circumstance which might otherwise constitute a defense available to, or
a legal or equitable discharge of, any Loan Party, any surety or any guarantor.



     SECTION 2.4. Setoff. If an Event of Default shall have occurred and be continuing,
each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any
time and from time to time, after obtaining the prior written consent of the Administrative Agent,
to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or
any such Affiliate to or for the credit or the account of any Guarantor against any and all of the
obligations of such Guarantor now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Guaranty or any other Loan Document and although such
obligations of such Guarantor may be contingent or unmatured or are owed to a branch or office of
such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated
on such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates
under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Company and the Administrative Agent promptly after any such setoff and
application; provided that the failure to give such notice shall not affect the validity of
such setoff and application.



     SECTION 2.5. Waiver, etc. Each Guarantor hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the Obligations and this Guaranty and any
requirement that any Secured Party protect, secure, perfect or insure any Lien, or any property
subject thereto, or exhaust any right or take any action against any Loan Party or any other Person
(including any other guarantor) or entity or any Collateral securing the Obligations, as the case
may be. Each Guarantor waives any rights and defenses that are or may become available to such
Guarantor by reason of §§ 2787 to 2855, inclusive, and §§ 2899 and 3433 of the California Civil
Code. As provided below, this Guaranty shall be governed by, and construed in accordance with, the
Laws of the State of New York. The foregoing waivers and the provisions hereinafter set forth in
this Guaranty which pertain to California Law are included solely out of an abundance of caution,
and shall not be construed to mean that any of the above-referenced provisions of California Law
are in any way applicable to this Guaranty or the Obligations.



4









 





     SECTION 2.6. Postponement of Subrogation, etc. Each Guarantor agrees that it will
not exercise any rights which it may acquire by way of rights of subrogation under any Loan
Document to which it is a party, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from any Loan Party, in respect of any payment made under any Loan
Document or otherwise, until following the Termination Date. Any amount paid to any Guarantor on
account of any such subrogation rights prior to the Termination Date shall be held in trust for the
benefit of the Secured Parties and shall immediately be paid and turned over to the Administrative
Agent for the benefit of the Secured Parties in the exact form received by such Guarantor (duly
endorsed in favor of the Administrative Agent, if required), to be credited and applied against the
Obligations, whether matured or unmatured, in accordance with Section 2.7; provided
that if any Guarantor has made payment to the Secured Parties of all or any part of the Obligations
and the Termination Date has occurred, then at such Guarantor’s request, the Administrative Agent
(on behalf of the Secured Parties) will, at the expense of such Guarantor, execute and deliver to
such Guarantor appropriate documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to such Guarantor of an interest in the
Obligations resulting from such payment. In furtherance of the foregoing, at all times prior to
the Termination Date, each Guarantor shall refrain from taking any action or commencing any
proceeding against any Loan Party (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in respect of payments made under this
Guaranty to any Secured Party.



     SECTION 2.7. Payments; Application. Each Guarantor agrees that all payments made by
such Guarantor hereunder will be made in Dollars to the Administrative Agent, without setoff,
counterclaim or other defense and in accordance with Sections 3.01 and 8.03 of the Credit
Agreement, free and clear of and without deduction for any Taxes, each Guarantor hereby agreeing to
comply with and be bound by the provisions of Sections 3.01 and 8.03 of the Credit Agreement in
respect of all payments made by it hereunder and the provisions of which Sections are hereby
incorporated into and made a part of this Guaranty by this reference as if set forth herein;
provided that references to the “Borrower” or “Borrowers” in such Sections shall be deemed
to be references to each Guarantor, and references to “this Agreement” in such Sections shall be
deemed to be references to this Guaranty.



     SECTION 2.8. Additional Guarantor Waivers and Agreements.




     (a) Each Guarantor understands and acknowledges that if the Secured Parties foreclose
judicially or nonjudicially against any real property security for the Obligations, that
foreclosure could impair or destroy any ability that such Guarantor may have to seek
reimbursement, contribution, or indemnification from the other Loan Parties or others based
on any right such Guarantor may have of subrogation, reimbursement, contribution, or
indemnification for any amounts paid by such Guarantor under this Guaranty. Each Guarantor
further understands and acknowledges that in the absence of this paragraph, such potential
impairment or destruction of such Guarantor’s rights, if any, may entitle such Guarantor to
assert a defense to this Guaranty based on Section 580d of the California Code of Civil
Procedure as interpreted in Union Bank v. Gradsky, 265 Cal. App. 2d 40 (1968). By
executing this Guaranty, each Guarantor freely, irrevocably, and unconditionally (i) waives
and relinquishes that defense and agrees that such Guarantor will be fully liable under this
Guaranty even though the Secured Parties



5









 







may foreclose, either by judicial foreclosure or by
exercise of power of sale, any deed of trust securing the Obligations; (ii) agrees that such
Guarantor will not assert that defense in any action or proceeding which the Secured Parties
may commence to enforce this Guaranty; (iii) acknowledges and agrees that the rights and
defenses waived by such Guarantor in this Guaranty include any right or defense that such
Guarantor may have or be entitled to assert based upon or arising out of any one or more of
§§ 580a, 580b, 580d, or 726 of the California Code of Civil Procedure or § 2848 of the
California Civil Code; and (iv) acknowledges and agrees that the Secured Parties are relying
on this waiver in creating the Obligations, and that this waiver is a material part of the
consideration which the Secured Parties are receiving for creating the Obligations.




     (b) Each Guarantor waives all rights and defenses that it may have because any of the
Obligations is secured by real property. This means, among other things, that (i) the
Secured Parties may collect from such Guarantor without first foreclosing on any real or
personal property Collateral pledged by the other Loan Parties; and (ii) if the Secured
Parties foreclose on any real property Collateral pledged by the other Loan Parties (A) the
amount of the Obligations may be reduced only by the price for which that Collateral is sold
at the foreclosure sale, even if the Collateral is worth more than the sale price, and (B)
the Secured Parties may collect from such Guarantor even if the Secured Parties, by
foreclosing on the real property Collateral, have destroyed any right such Guarantor may
have to collect from the other Loan Parties. This is an unconditional and irrevocable
waiver of any rights and defenses such Guarantor may have because any of the Obligations is
secured by real property. These rights and defenses include, but are not limited to, any
rights or defenses based upon § 580a, 580b, 580d, or 726 of the California Code of Civil
Procedure.




     (c) Each Guarantor waives any right or defense it may have at law or equity, including
California Code of Civil Procedure § 580a, to a fair market value hearing or action to
determine a deficiency judgment after a foreclosure.



ARTICLE III



REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into the Credit Agreement and make Credit
Extensions thereunder, and to induce Secured Parties to enter into Swap Contracts, each Guarantor
represents and warrants to each Secured Party as set forth below.



     SECTION 3.1. Credit Agreement Representations and Warranties. The representations
and warranties contained in Article V of the Credit Agreement, insofar as the representations and
warranties contained therein are applicable to any Guarantor and its properties, are true and
correct in all material respects, each such representation and warranty set forth in such Article
(insofar as applicable as aforesaid) and all other terms of the Credit Agreement to which reference
is made therein, together with all related definitions and ancillary provisions, being hereby
incorporated into this Guaranty by reference as though specifically set forth in this Article.



6









 





     SECTION 3.2. Financial Condition, etc. Each Guarantor has knowledge of each other
Loan Party’s financial condition and affairs and has adequate means to obtain from each such Loan
Party on an ongoing basis information relating thereto and to such Loan Party’s ability to pay and
perform the Obligations, and agrees to assume the responsibility for keeping, and to keep, so
informed for so long as this Guaranty is in effect. Each Guarantor acknowledges and agrees that
the Secured Parties shall have no obligation to investigate the financial condition or affairs of
any Loan Party for the benefit of such Guarantor nor to advise such Guarantor of any fact
respecting, or any change in, the financial condition or affairs of any other Loan Party that might
become known to any Secured Party at any time, whether or not such Secured Party knows or believes
or has reason to know or believe that any such fact or change is unknown to such Guarantor, or
might (or does) materially increase the risk of such Guarantor as guarantor, or might (or would)
affect the willingness of such Guarantor to continue as a guarantor of the Obligations.



     SECTION 3.3. Best Interests. It is in the best interests of each Guarantor to
execute this Guaranty inasmuch as such Guarantor will, as a result of being a Subsidiary of the
Company, derive substantial direct and indirect benefits from the Credit Extensions made from time
to time to the Borrowers by the Lenders and the L/C Issuer pursuant to the Credit Agreement and the
execution and delivery of Swap Contracts between any Borrower, other Loan Parties and certain
Secured Parties, and each Guarantor agrees that the Secured Parties are relying on this
representation in agreeing to make Credit Extensions to the Borrowers and enter into such Swap
Contracts.



ARTICLE IV



COVENANTS, ETC.




     Each Guarantor covenants and agrees that, at all times prior to the Termination Date, it will
perform, comply with and be bound by all of the agreements, covenants and obligations contained in
the Credit Agreement (including Articles VI and VII and Section 8.01(f) and (g) of the Credit
Agreement) which are applicable to such Guarantor or its properties, each such agreement, covenant
and obligation contained in the Credit Agreement and all other terms of the Credit Agreement to
which reference is made in this Article, together with all related definitions and ancillary
provisions, being hereby incorporated into this Guaranty by this reference as though specifically
set forth in this Article.



ARTICLE V



MISCELLANEOUS PROVISIONS




     SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and provisions thereof, including Article X
thereof. To the extent of any conflict between the terms contained in this Guaranty and the terms
contained in the Credit Agreement, the terms of the Credit Agreement shall control.



7









 





     SECTION 5.2. Binding on Successors, Transferees and Assigns; Assignment. This
Guaranty shall remain in full force and effect until the Termination Date has occurred, shall be
jointly and severally binding upon each Guarantor and its successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Secured Party and its successors,
transferees and assigns; provided that no Guarantor may (unless otherwise permitted under
the terms of the Credit Agreement) assign any of its obligations hereunder without the prior
written consent of all Lenders.



     SECTION 5.3. Amendments, etc. No amendment to or waiver of any provision of this
Guaranty, nor consent to any departure by any Guarantor from its obligations under this Guaranty,
shall in any event be effective unless the same shall be in writing and signed by the
Administrative Agent (on behalf of the Lenders or the Required Lenders, as the case may be,
pursuant to Section 10.01 of the Credit Agreement) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.



     SECTION 5.4. Notices. All notices and other communications provided for hereunder
shall be in writing or by facsimile and addressed, delivered or transmitted to the appropriate
party at the address or facsimile number of such party (in the case of any Guarantor, in care of
the Company) specified in the Credit Agreement or at such other address or facsimile number as may
be designated by such party in a notice to the other party. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall
be deemed given when received; any such notice, if transmitted by facsimile, shall be deemed given
when the confirmation of transmission thereof is received by the transmitter.



     SECTION 5.5. Additional Guarantors. Upon the execution and delivery by any other
Person of a supplement in the form of Annex I hereto, such Person shall become a
“Guarantor” hereunder with the same force and effect as if it were originally a party to this
Guaranty and named as a “Guarantor” hereunder. The execution and delivery of such supplement shall
not require the consent of any other Guarantor hereunder, and the rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new
Guarantor as a party to this Guaranty.



     SECTION 5.6. Release of Guarantor. Upon the occurrence of the Termination Date, this
Guaranty and all obligations of each Guarantor hereunder shall terminate, without delivery of any
instrument or performance of any act by any party. In addition, at the request of the Company, and
at the sole expense of the Company, a Guarantor shall be released from its obligations hereunder in
the event that the Capital Securities of such Guarantor are Disposed of in a transaction permitted
by the Credit Agreement; provided that the Company shall have delivered to the
Administrative Agent, at least three Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Guarantor and a certification by the Company
stating that such transaction is in compliance with the Loan Documents.



     SECTION 5.7. No Waiver; Remedies. In addition to, and not in limitation of,
Sections 2.3 and 2.5, no failure on the part of any Secured Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right hereunder preclude any other or further exercise thereof or the
exercise of any other



8









 







right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by Law.



     SECTION 5.8. Section Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this Guaranty.



     SECTION 5.9. Severability. If any provision of this Guaranty or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Guaranty and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     SECTION 5.10. Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




     (b) SUBMISSION TO JURISDICTION. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS 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 GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE 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 BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OTHER LOAN



9









 







DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. EACH
FOREIGN OBLIGOR HEREBY IRREVOCABLY APPOINTS THE COMPANY, AS ITS AUTHORIZED AGENT TO RECEIVE
ON ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT AND CONSENTS
TO THE SERVICE OF PROCESS OUT OF ANY SUCH COURTS BY MAILING A COPY THEREOF, BY REGISTERED
MAIL, POSTAGE PREPAID, TO SUCH AGENT AT SUCH ADDRESS, AND AGREES THAT SUCH SERVICE, TO THE
FULLEST EXTENT PERMITTED BY LAW: (I) SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF
PROCESS UPON IT IN ANY SUCH SUIT, ACTION OR PROCEEDING; AND (II) SHALL BE TAKEN AND HELD TO
BE VALID PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT. IF ANY AGENT APPOINTED BY ANY
PERSON PARTY HERETO REFUSES TO ACCEPT SERVICE, SUCH PERSON HEREBY AGREES THAT SERVICE UPON
IT BY MAIL SHALL UPON RECEIPT CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN CONTAINED SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF ANY OTHER PERSON PARTY HERETO TO BRING PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS
OF ANY OTHER JURISDICTION.



     SECTION 5.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 GUARANTY OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 GUARANTY AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     SECTION 5.12. California Judicial Reference. If any action or proceeding is filed in
a court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is
hereby directed to, make a general reference pursuant to California Code of Civil



10









 







Procedure Section
638 to a referee (who shall be a single active or retired judge) to hear and determine all of the
issues in such action or proceeding (whether of fact or of Law) and to report a statement of
decision, provided that at the option of any party to such proceeding, any such issues
pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section
1281.8 shall be heard and determined by the court; and (b) without limiting the generality of
Section 10.04 of the Credit Agreement, the Guarantors, jointly and severally, shall be solely
responsible to pay all fees and expenses of any referee appointed in such action or proceeding.



     SECTION 5.13. Counterparts. This Guaranty may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.



     SECTION 5.14. Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency
into another currency, the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is given. The obligation of
each Guarantor in respect of any such sum due from it to the Administrative Agent or the Lenders
hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which such sum is denominated in accordance with
the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only
to the extent that on the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from any Guarantor in the Agreement Currency, such Guarantor agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or
the Person to whom such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to such Guarantor (or
to any other Person who may be entitled thereto under applicable law).



     SECTION 5.15. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



11









 





     IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and
delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	[NAME OF SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	[NAME OF SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:



KEYBANK NATIONAL ASSOCIATION,

  as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 



12









 






	 	 	 	 	 



ANNEX I to

the Subsidiary Guaranty





     THIS SUPPLEMENT, dated as of                      ___, 200___(this “Supplement”), is to the
Subsidiary Guaranty, dated as of [Date] (as amended, supplemented, amended and restated or
otherwise modified from time to time, the “Guaranty”), among the Guarantors (such
capitalized term, and other terms used in this Supplement, to have the meanings set forth in
Article I of the Guaranty) from time to time party thereto, in favor of KEYBANK NATIONAL
ASSOCIATION, as administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H:




     WHEREAS, pursuant to the provisions of Section 5.5 of the Guaranty, each of the undersigned is
becoming a Guarantor under the Guaranty; and



     WHEREAS, each of the undersigned desires to become a “Guarantor” under the Guaranty in order
to induce the Secured Parties to continue to extend Credit Extensions under the Credit Agreement;



     NOW, THEREFORE, in consideration of the premises, and for other consideration (the receipt and
sufficiency of which is hereby acknowledged), each of the undersigned agrees, for the benefit of
each Secured Party, as follows.



     SECTION 1. Party to Guaranty, etc. In accordance with the terms of the Guaranty, by
its signature below, each of the undersigned hereby irrevocably agrees to become a Guarantor under
the Guaranty with the same force and effect as if it were an original signatory thereto and each of
the undersigned hereby (a) agrees to be bound by and comply with all of the terms and provisions of
the Guaranty applicable to it as a Guarantor and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true and correct as of the
date hereof. In furtherance of the foregoing, each reference to a “Guarantor” and/or “Guarantors”
in the Guaranty shall be deemed to include each of the undersigned.



     SECTION 2. Waiver, Agreements, etc.



     (a) Each of the undersigned hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Obligations, this Supplement and the Guaranty and any
requirement that any Secured Party protect, secure, perfect or insure any Lien, or any property
subject thereto, or exhaust any right or take any action against any Loan Party or any other Person
(including any other Guarantor) or entity or any Collateral securing the Obligations, as the case
may be. Each of the undersigned waives any rights and defenses that are or may become available to
such Person by reason of §§ 2787 to 2855, inclusive, and §§ 2899 and 3433 of the California Civil
Code. As provided below, this Supplement shall be governed by, and construed in accordance with,
the Laws of the State of New York. The foregoing waivers and the provisions hereinafter set forth
in this Supplement and the Guaranty which pertain to California Law are included solely out of an
abundance of caution, and shall not be



1









 







construed to mean that any of the above-referenced
provisions of California Law are in any way applicable to this Supplement, the Guaranty or the
Obligations.



     (b) Each of the undersigned understands and acknowledges that if the Secured Parties foreclose
judicially or nonjudicially against any real property security for the Obligations, that
foreclosure could impair or destroy any ability that such Person may have to seek reimbursement,
contribution, or indemnification from the other Loan Parties or others based on any right such
Person may have of subrogation, reimbursement, contribution, or indemnification for any amounts
paid by such Person under this Supplement and the Guaranty. Each of the undersigned further
understands and acknowledges that in the absence of this paragraph, such potential impairment or
destruction of such Person’s rights, if any, may entitle such Person to assert a defense to this
Supplement and the Guaranty based on Section 580d of the California Code of Civil Procedure as
interpreted in Union Bank v. Gradsky, 265 Cal. App. 2d 40 (1968). By executing this
Supplement, each of the undersigned freely, irrevocably, and unconditionally (i) waives and
relinquishes that defense and agrees that such Person will be fully liable under this Supplement
and the Guaranty even though the Secured Parties may foreclose, either by judicial foreclosure or
by exercise of power of sale, any deed of trust securing the Obligations; (ii) agrees that such
Person will not assert that defense in any action or proceeding which the Secured Parties may
commence to enforce this Supplement and the Guaranty; (iii) acknowledges and agrees that the rights
and defenses waived by such Person in this Supplement and the Guaranty include any right or defense
that such Person may have or be entitled to assert based upon or arising out of any one or more of
§§ 580a, 580b, 580d, or 726 of the California Code of Civil Procedure or § 2848 of the California
Civil Code; and (iv) acknowledges and agrees that the Secured Parties are relying on this waiver in
creating the Obligations, and that this waiver is a material part of the consideration which the
Secured Parties are receiving for creating the Obligations.



     (c) Each of the undersigned waives all rights and defenses that it may have because any of the
Obligations is secured by real property. This means, among other things, that (i) the Secured
Parties may collect from such Person without first foreclosing on any real or personal property
Collateral pledged by the other Loan Parties; and (ii) if the Secured Parties foreclose on any real
property Collateral pledged by the other Loan Parties (A) the amount of the Obligations may be
reduced only by the price for which that Collateral is sold at the foreclosure sale, even if the
Collateral is worth more than the sale price, and (B) the Secured Parties may collect from such
Person even if the Secured Parties, by foreclosing on the real property Collateral, have destroyed
any right such Person may have to collect from the other Loan Parties. This is an unconditional
and irrevocable waiver of any rights and defenses such Person may have because any of the
Obligations is secured by real property. These rights and defenses include, but are not limited
to, any rights or defenses based upon § 580a, 580b, 580d, or 726 of the California Code of Civil
Procedure.



     (d) Each of the undersigned waives any right or defense it may have at Law or equity,
including California Code of Civil Procedure § 580a, to a fair market value hearing or action to
determine a deficiency judgment after a foreclosure.



     SECTION 4. Representations. Each of the undersigned hereby represents and warrants
that this Supplement has been duly authorized, executed and delivered by it and that this



2









 







Supplement and the Guaranty constitute the legal, valid and binding obligation of each of the
undersigned, enforceable against it in accordance with its terms.



     SECTION 5. Full Force of Guaranty. Except as expressly supplemented hereby, the
Guaranty shall remain in full force and effect in accordance with its terms.



     SECTION 6. Severability. If any provision of this Supplement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Supplement and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



     SECTION 7. Indemnity; Fees and Expenses, etc. Without limiting the provisions of any
other Loan Document, each of the undersigned agrees to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses incurred in connection with this Supplement, including reasonable
attorney’s fees and expenses of the Administrative Agent’s counsel.



     SECTION 8. Governing Law, Entire Agreement, etc. THIS SUPPLEMENT WILL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.



     SECTION 9. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Supplement, the Guaranty or any other Loan Document, (a) the
court shall, and is hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear
and determine all of the issues in such action or proceeding (whether of fact or of Law) and to
report a statement of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Guarantors (including the undersigned), jointly and
severally, shall be solely responsible to pay all fees and expenses of any referee appointed in
such action or proceeding.



     SECTION 10. Counterparts. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.



     SECTION 11. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,



3









 







CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



4









 





     IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be duly
executed and delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:



KEYBANK NATIONAL ASSOCIATION,

  as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




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EXHIBIT
F-3




JAPANESE SUBSIDIARY GUARANTY




     This JAPANESE SUBSIDIARY GUARANTY, dated as of July 27, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, this “Guaranty”), is made by
ASYST JAPAN, INC., a Japanese corporation (“AJI”), ASYST SHINKO, INC., a Japanese
corporation (“ASI”), and each Japanese Subsidiary of ASYST TECHNOLOGIES, INC., a California
corporation (the “Company”), from time to time party hereto (each individually, a
“Guarantor” and, collectively, the “Guarantors”), in favor of KEYBANK NATIONAL
ASSOCIATION, as administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H:




     WHEREAS, pursuant to a Credit Agreement, dated as of July 27, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Company, AJI, ASI and certain other Subsidiaries of the Company party thereto from time
to time (each a “Designated Borrower” and, collectively with the Company, AJI and ASI, the
“Borrowers”), the Lenders and the Administrative Agent, the Lenders and the L/C Issuer have
extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, as a condition precedent to the making of the Credit Extensions under the Credit
Agreement, each Guarantor is required to execute and deliver this Guaranty.



     NOW, THEREFORE, for good and valuable consideration the receipt of which is hereby
acknowledged, and in order to induce the Lenders and the L/C Issuer to make Credit Extensions to
the Borrowers, and to induce Secured Parties to enter into Swap Contracts, each Guarantor jointly
and severally agrees, for the benefit of each Secured Party, as follows:



ARTICLE I



DEFINITIONS




     SECTION 1.1. Certain Terms. The following terms when used in this Guaranty,
including its preamble and recitals, shall have the following meanings (such definitions to be
equally applicable to the singular and plural forms thereof):



     “Administrative Agent” is defined in the preamble.



     “AJI” is defined in the preamble.



     “ASI” is defined in the preamble.



     “Borrowers” is defined in the first recital.



     “Company” is defined in the preamble.



Japanese Subsidiary Guaranty




 









 





     “Credit Agreement” is defined in the first recital.



     “Guarantor” and “Guarantors” are defined in the preamble.



     “Guaranty” is defined in the preamble.



     “Secured Obligations” means all Obligations of the Foreign Obligors.



     “Termination Date” means the date on which all Obligations have been paid in full in
cash, all Letters of Credit have been terminated or have expired (or have been Cash
Collateralized), all Secured Hedge Agreements have been terminated or have otherwise been provided
for on terms reasonably satisfactory to the parties, and all Commitments shall have been
terminated.



     SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Guaranty, including its preamble and recitals, have
the meanings provided in the Credit Agreement.



ARTICLE II



GUARANTY PROVISIONS




     SECTION 2.1. Guaranty. Each Guarantor hereby jointly and severally absolutely,
unconditionally and irrevocably




     (a) guarantees the full and punctual payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise, of all Secured
Obligations now or hereafter existing, whether for principal, interest (including interest
accruing at the then applicable rate provided in the Credit Agreement after the occurrence
of any Default set forth in Section 8.01(f) or (g) of the Credit Agreement, whether or not a
claim for post-filing or post-petition interest is allowed under applicable Law following
the institution of a proceeding under bankruptcy, insolvency or similar Laws), fees,
reimbursement obligations with respect to the Letters of Credit or otherwise, expenses or
otherwise; and




     (b) indemnifies and holds harmless each Secured Party for any and all costs and
expenses (including reasonable attorney’s fees and expenses) incurred by such Secured Party
in enforcing any rights under this Guaranty.


provided that each Guarantor shall only be liable under this Guaranty for the maximum
amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates
to such Guarantor, voidable under applicable Law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and each Guarantor specifically agrees that it shall not be necessary or
required that any Secured Party exercise any right, assert any claim or demand or enforce any
remedy whatsoever against any Loan Party or any other Person before or as a condition to the
obligations of such Guarantor hereunder.




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     SECTION 2.2. Payments Set Aside. To the extent that any payment by or on behalf of
any Guarantor is made to the Administrative Agent, the L/C Issuer, any Lender or any other Secured
Party, or the Administrative Agent, the L/C Issuer, any Lender or any other Secured Party exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer,
such Lender or such Secured Party in its discretion) to be repaid to a trustee, receiver, or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then to
the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred.



     SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects be a
continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full
force and effect until the Termination Date has occurred. Each Guarantor jointly and severally
guarantees that the Secured Obligations will be paid strictly in accordance with the terms of each
Loan Document under which they arise, regardless of any Law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with
respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several,
absolute, unconditional and irrevocable irrespective of:




     (a) any lack of validity, legality or enforceability of any Loan Document;




     (b) the failure of any Secured Party




     (i) to assert any claim or demand or to enforce any right or remedy against any
Loan Party or any other Person (including any other guarantor) under the provisions
of any Loan Document or otherwise, or




     (ii) to exercise any right or remedy against any other guarantor (including any
of the Company or any other Subsidiary Guarantor) of, or Collateral securing, any
Secured Obligations;




     (c) any change in the time, manner or place of payment of, or in any other term of, all
or any part of the Secured Obligations, or any other extension, compromise or renewal of any
Secured Obligation;




     (d) any reduction, limitation, impairment or termination of any Secured Obligations for
any reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and each Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Secured Obligations or otherwise;




     (e) any amendment to, rescission, waiver, or other modification of, or any consent to
or departure from, any of the terms of any Loan Document;



4









 






     (f) any addition, exchange or release of any Collateral or of any Person that is (or
will become) a guarantor (including a Guarantor hereunder) of the Secured Obligations, or
any surrender or non-perfection of any Collateral, or any amendment to or waiver or release
or addition to, or consent to or departure from, any other guaranty held by any Secured
Party securing any of the Secured Obligations; or




     (g) any other circumstance which might otherwise constitute a defense available to, or
a legal or equitable discharge of, any Loan Party, any surety or any guarantor.



     SECTION 2.4. Setoff. If an Event of Default shall have occurred and be continuing,
each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any
time and from time to time, after obtaining the prior written consent of the Administrative Agent,
to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or
any such Affiliate to or for the credit or the account of any Guarantor against any and all of the
obligations of such Guarantor now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Guaranty or any other Loan Document and although such
obligations of such Guarantor may be contingent or unmatured or are owed to a branch or office of
such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated
on such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates
under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Company and the Administrative Agent promptly after any such setoff and
application; provided that the failure to give such notice shall not affect the validity of
such setoff and application.



     SECTION 2.5. Waiver, etc. Each Guarantor hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the Secured Obligations and this Guaranty
and any requirement that any Secured Party protect, secure, perfect or insure any Lien, or any
property subject thereto, or exhaust any right or take any action against any Loan Party or any
other Person (including any other guarantor) or entity or any Collateral securing the Secured
Obligations, as the case may be.



     SECTION 2.6. Postponement of Subrogation, etc. Each Guarantor agrees that it will
not exercise any rights which it may acquire by way of rights of subrogation under any Loan
Document to which it is a party, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from any Loan Party, in respect of any payment made under any Loan
Document or otherwise, until following the Termination Date. Any amount paid to any Guarantor on
account of any such subrogation rights prior to the Termination Date shall be held in trust for the
benefit of the Secured Parties and shall immediately be paid and turned over to the Administrative
Agent for the benefit of the Secured Parties in the exact form received by such Guarantor (duly
endorsed in favor of the Administrative Agent, if required), to be credited and applied against the
Secured Obligations, whether matured or unmatured, in accordance with Section 2.7;
provided that if any Guarantor has made payment to the Secured Parties of all or any



5









 







part of the Secured Obligations and the Termination Date has occurred, then at such
Guarantor’s request, the Administrative Agent (on behalf of the Secured Parties) will, at the
expense of such Guarantor, execute and deliver to such Guarantor appropriate documents (without
recourse and without representation or warranty) necessary to evidence the transfer by subrogation
to such Guarantor of an interest in the Secured Obligations resulting from such payment. In
furtherance of the foregoing, at all times prior to the Termination Date, each Guarantor shall
refrain from taking any action or commencing any proceeding against any Loan Party (or its
successors or assigns, whether in connection with a bankruptcy proceeding or otherwise) to recover
any amounts in respect of payments made under this Guaranty to any Secured Party.



     SECTION 2.7. Payments; Application. Each Guarantor agrees that all payments made by
such Guarantor hereunder will be made in Dollars to the Administrative Agent, without setoff,
counterclaim or other defense and in accordance with Sections 3.01 and 8.03 of the Credit
Agreement, free and clear of and without deduction for any Taxes, each Guarantor hereby agreeing to
comply with and be bound by the provisions of Sections 3.01 and 8.03 of the Credit Agreement in
respect of all payments made by it hereunder and the provisions of which Sections are hereby
incorporated into and made a part of this Guaranty by this reference as if set forth herein;
provided that references to the “Borrower” or “Borrowers” in such Sections shall be deemed
to be references to each Guarantor, and references to “this Agreement” in such Sections shall be
deemed to be references to this Guaranty.



ARTICLE III



REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into the Credit Agreement and make Credit
Extensions thereunder, and to induce Secured Parties to enter into Swap Contracts, each Guarantor
represents and warrants to each Secured Party as set forth below.



     SECTION 3.1. Credit Agreement Representations and Warranties. The representations
and warranties contained in Article V of the Credit Agreement, insofar as the representations and
warranties contained therein are applicable to any Guarantor and its properties, are true and
correct in all material respects, each such representation and warranty set forth in such Article
(insofar as applicable as aforesaid) and all other terms of the Credit Agreement to which reference
is made therein, together with all related definitions and ancillary provisions, being hereby
incorporated into this Guaranty by reference as though specifically set forth in this Article.



     SECTION 3.2. Financial Condition, etc. Each Guarantor has knowledge of each other
Loan Party’s financial condition and affairs and has adequate means to obtain from each such Loan
Party on an ongoing basis information relating thereto and to such Loan Party’s ability to pay and
perform the Secured Obligations, and agrees to assume the responsibility for keeping, and to keep,
so informed for so long as this Guaranty is in effect. Each Guarantor acknowledges and agrees that
the Secured Parties shall have no obligation to investigate the financial condition or affairs of
any Loan Party for the benefit of such Guarantor nor to advise such Guarantor of any fact
respecting, or any change in, the financial condition or affairs of any other Loan Party



6









 







that might become known to any Secured Party at any time, whether or not such Secured Party
knows or believes or has reason to know or believe that any such fact or change is unknown to such
Guarantor, or might (or does) materially increase the risk of such Guarantor as guarantor, or might
(or would) affect the willingness of such Guarantor to continue as a guarantor of the Secured
Obligations.



     SECTION 3.3. Best Interests. It is in the best interests of each Guarantor to
execute this Guaranty inasmuch as such Guarantor will, as a result of being a Subsidiary of the
Company, derive substantial direct and indirect benefits from the Credit Extensions made from time
to time to the Borrowers by the Lenders and the L/C Issuer pursuant to the Credit Agreement and the
execution and delivery of Swap Contracts between any Borrower, other Loan Parties and certain
Secured Parties, and each Guarantor agrees that the Secured Parties are relying on this
representation in agreeing to make Credit Extensions to the Borrowers and enter into such Swap
Contracts.



ARTICLE IV



COVENANTS, ETC.




     Each Guarantor covenants and agrees that, at all times prior to the Termination Date, it will
perform, comply with and be bound by all of the agreements, covenants and obligations contained in
the Credit Agreement (including Articles VI and VII and Section 8.01(f) and (g) of the Credit
Agreement) which are applicable to such Guarantor or its properties, each such agreement, covenant
and obligation contained in the Credit Agreement and all other terms of the Credit Agreement to
which reference is made in this Article, together with all related definitions and ancillary
provisions, being hereby incorporated into this Guaranty by this reference as though specifically
set forth in this Article.



ARTICLE V



MISCELLANEOUS PROVISIONS




     SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and provisions thereof, including Article X
thereof. To the extent of any conflict between the terms contained in this Guaranty and the terms
contained in the Credit Agreement, the terms of the Credit Agreement shall control.



     SECTION 5.2. Binding on Successors, Transferees and Assigns; Assignment. This
Guaranty shall remain in full force and effect until the Termination Date has occurred, shall be
jointly and severally binding upon each Guarantor and its successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Secured Party and its successors,
transferees and assigns; provided that no Guarantor may (unless otherwise permitted under
the terms of the Credit Agreement) assign any of its obligations hereunder without the prior
written consent of all Lenders.



7









 





     SECTION 5.3. Amendments, etc. No amendment to or waiver of any provision of this
Guaranty, nor consent to any departure by any Guarantor from its obligations under this Guaranty,
shall in any event be effective unless the same shall be in writing and signed by the
Administrative Agent (on behalf of the Lenders or the Required Lenders, as the case may be,
pursuant to Section 10.01 of the Credit Agreement) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.



     SECTION 5.4. Notices. All notices and other communications provided for hereunder
shall be in writing or by facsimile and addressed, delivered or transmitted to the appropriate
party at the address or facsimile number of such party (in the case of any Guarantor, in care of
the Company) specified in the Credit Agreement or at such other address or facsimile number as may
be designated by such party in a notice to the other party. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall
be deemed given when received; any such notice, if transmitted by facsimile, shall be deemed given
when the confirmation of transmission thereof is received by the transmitter.



     SECTION 5.5. Additional Guarantors. Upon the execution and delivery by any other
Person of a supplement in the form of Annex I hereto, such Person shall become a
“Guarantor” hereunder with the same force and effect as if it were originally a party to this
Guaranty and named as a “Guarantor” hereunder. The execution and delivery of such supplement shall
not require the consent of any other Guarantor hereunder, and the rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new
Guarantor as a party to this Guaranty.



     SECTION 5.6. Release of Guarantor. Upon the occurrence of the Termination Date, this
Guaranty and all obligations of each Guarantor hereunder shall terminate, without delivery of any
instrument or performance of any act by any party. In addition, at the request of the Company, and
at the sole expense of the Company, a Guarantor shall be released from its obligations hereunder in
the event that the Capital Securities of such Guarantor are Disposed of in a transaction permitted
by the Credit Agreement; provided that the Company shall have delivered to the
Administrative Agent, at least three Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Guarantor and a certification by the Company
stating that such transaction is in compliance with the Loan Documents.



     SECTION 5.7. No Waiver; Remedies. In addition to, and not in limitation of,
Sections 2.3 and 2.5, no failure on the part of any Secured Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by Law.



     SECTION 5.8. Section Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this Guaranty.



     SECTION 5.9. Severability. If any provision of this Guaranty or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and



8









 







enforceability of the remaining provisions of this Guaranty and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



     SECTION 5.10. Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




     (b) SUBMISSION TO JURISDICTION. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS 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 GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE 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 BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR



9









 







NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. EACH FOREIGN OBLIGOR HEREBY
IRREVOCABLY APPOINTS THE COMPANY, AS ITS AUTHORIZED AGENT TO RECEIVE ON ITS BEHALF SERVICE
OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT AND CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY SUCH COURTS BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE
PREPAID, TO SUCH AGENT AT SUCH ADDRESS, AND AGREES THAT SUCH SERVICE, TO THE FULLEST EXTENT
PERMITTED BY LAW: (I) SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON IT
IN ANY SUCH SUIT, ACTION OR PROCEEDING; AND (II) SHALL BE TAKEN AND HELD TO BE VALID
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT. IF ANY AGENT APPOINTED BY ANY PERSON
PARTY HERETO REFUSES TO ACCEPT SERVICE, SUCH PERSON HEREBY AGREES THAT SERVICE UPON IT BY
MAIL SHALL UPON RECEIPT CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN CONTAINED SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF
ANY OTHER PERSON PARTY HERETO TO BRING PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS OF ANY
OTHER JURISDICTION.



     SECTION 5.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 GUARANTY OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 GUARANTY AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     SECTION 5.12. California Judicial Reference. If any action or proceeding is filed in
a court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is
hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section
638 to a referee (who shall be a single active or retired judge) to hear and determine all of the
issues in such action or proceeding (whether of fact or of Law) and to report a statement of
decision, provided that at the option of any party to such proceeding, any such issues
pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section
1281.8 shall be heard and determined by the court; and (b) without limiting the generality of
Section 10.04 of the Credit Agreement, the Guarantors, jointly and severally, shall be solely
responsible to pay all fees and expenses of any referee appointed in such action or proceeding.



10









 





     SECTION 5.13. Counterparts. This Guaranty may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.



     SECTION 5.14. Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency
into another currency, the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is given. The obligation of
each Guarantor in respect of any such sum due from it to the Administrative Agent or the Lenders
hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which such sum is denominated in accordance with
the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only
to the extent that on the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from any Guarantor in the Agreement Currency, such Guarantor agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or
the Person to whom such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to such Guarantor (or
to any other Person who may be entitled thereto under applicable law).



     SECTION 5.15. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



11









 





     IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered
by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	ASYST JAPAN, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASYST SHINKO, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




12









 





	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:



KEYBANK NATIONAL ASSOCIATION,

  as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




13









 





ANNEX I to

the Japanese Subsidiary Guaranty




     THIS SUPPLEMENT, dated as of                      ___, ___(this “Supplement”), is to the
Japanese Subsidiary Guaranty, dated as of July ___, 2007 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the “Guaranty”), among the Guarantors
(such capitalized term, and other terms used in this Supplement, to have the meanings set forth in
Article I of the Guaranty) from time to time party thereto, in favor of KEYBANK NATIONAL
ASSOCIATION, as administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H:




     WHEREAS, pursuant to the provisions of Section 5.5 of the Guaranty, each of the undersigned is
becoming a Guarantor under the Guaranty; and



     WHEREAS, each of the undersigned desires to become a “Guarantor” under the Guaranty in order
to induce the Secured Parties to continue to extend Credit Extensions under the Credit Agreement;



     NOW, THEREFORE, in consideration of the premises, and for other consideration (the receipt and
sufficiency of which is hereby acknowledged), each of the undersigned agrees, for the benefit of
each Secured Party, as follows.



     SECTION 1. Party to Guaranty, etc. In accordance with the terms of the Guaranty, by
its signature below, each of the undersigned hereby irrevocably agrees to become a Guarantor under
the Guaranty with the same force and effect as if it were an original signatory thereto and each of
the undersigned hereby (a) agrees to be bound by and comply with all of the terms and provisions of
the Guaranty applicable to it as a Guarantor and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true and correct as of the
date hereof. In furtherance of the foregoing, each reference to a “Guarantor” and/or “Guarantors”
in the Guaranty shall be deemed to include each of the undersigned.



     SECTION 2. Waiver, Agreements, etc. Each of the undersigned hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to any of the Secured
Obligations, this Supplement and the Guaranty and any requirement that any Secured Party protect,
secure, perfect or insure any Lien, or any property subject thereto, or exhaust any right or take
any action against any Loan Party or any other Person (including any other Guarantor) or entity or
any Collateral securing the Secured Obligations, as the case may be.



     SECTION 3. Representations. Each of the undersigned hereby represents and warrants
that this Supplement has been duly authorized, executed and delivered by it and that this
Supplement and the Guaranty constitute the legal, valid and binding obligation of each of the
undersigned, enforceable against it in accordance with its terms.



     SECTION 4. Full Force of Guaranty. Except as expressly supplemented hereby, the
Guaranty shall remain in full force and effect in accordance with its terms.



1









 





     SECTION 5. Severability. If any provision of this Supplement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Supplement and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



     SECTION 6. Indemnity; Fees and Expenses, etc. Without limiting the provisions of any
other Loan Document, each of the undersigned agrees to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses incurred in connection with this Supplement, including reasonable
attorney’s fees and expenses of the Administrative Agent’s counsel.



     SECTION 7. Governing Law, Entire Agreement, etc. THIS SUPPLEMENT WILL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.



     SECTION 8. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Supplement, the Guaranty or any other Loan Document, (a) the
court shall, and is hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear
and determine all of the issues in such action or proceeding (whether of fact or of Law) and to
report a statement of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Guarantors (including the undersigned), jointly and
severally, shall be solely responsible to pay all fees and expenses of any referee appointed in
such action or proceeding.



     SECTION 9. Counterparts. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.



     SECTION 10. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



2









 





     IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be duly executed and
delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:



KEYBANK NATIONAL ASSOCIATION

  as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




1









 





EXHIBIT
F-4




TAIWANESE SUBSIDIARY GUARANTY




     This TAIWANESE SUBSIDIARY GUARANTY, dated as of July 27, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, this “Guaranty”), is made by
each Taiwanese Subsidiary of ASYST TECHNOLOGIES, INC., a California corporation (the
“Company”), from time to time party hereto (each individually, a “Guarantor” and,
collectively, the “Guarantors”), in favor of KEYBANK NATIONAL ASSOCIATION, as
administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H:




     WHEREAS, pursuant to a Credit Agreement, dated as of July 27, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Company, Asyst Japan, Inc., a Japanese corporation (“AJI”), Asyst Shinko, Inc., a
Japanese corporation (“ASI”), and certain other Subsidiaries of the Company party thereto
from time to time (each a “Designated Borrower” and, collectively with the Company, AJI and
ASI, the “Borrowers”), the Lenders and the Administrative Agent, the Lenders and the L/C
Issuer have extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, as a condition precedent to the making of the Credit Extensions under the Credit
Agreement, each Guarantor is required to execute and deliver this Guaranty.



     NOW, THEREFORE, for good and valuable consideration the receipt of which is hereby
acknowledged, and in order to induce the Lenders and the L/C Issuer to make Credit Extensions to
the Borrowers, and to induce Secured Parties to enter into Swap Contracts, each Guarantor jointly
and severally agrees, for the benefit of each Secured Party, as follows:



ARTICLE I



DEFINITIONS





     SECTION 1.1. Certain Terms. The following terms when used in this Guaranty,
including its preamble and recitals, shall have the following meanings (such definitions to be
equally applicable to the singular and plural forms thereof):



     “Administrative Agent” is defined in the preamble.



     “AJI” is defined in the first recital.



     “ASI” is defined in the first recital.



     “Borrowers” is defined in the first recital.



     “Company” is defined in the preamble.



Taiwanese Subsidiary Guaranty




 









 





     “Credit Agreement” is defined in the first recital.



     “Guarantor” and “Guarantors” are defined in the preamble.



     “Guaranty” is defined in the preamble.



     “Secured Obligations” means all Obligations of the Foreign Obligors.



     “Termination Date” means the date on which all Obligations have been paid in full in
cash, all Letters of Credit have been terminated or have expired (or have been Cash
Collateralized), all Secured Hedge Agreements have been terminated or have otherwise been provided
for on terms reasonably satisfactory to the parties, and all Commitments shall have been
terminated.




     SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Guaranty, including its preamble and recitals,
have the meanings provided in the Credit Agreement.



ARTICLE II



GUARANTY PROVISIONS





     SECTION 2.1. Guaranty. Each Guarantor hereby jointly and severally absolutely,
unconditionally and irrevocably




     (a) guarantees the full and punctual payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise, of all Secured
Obligations now or hereafter existing, whether for principal, interest (including interest
accruing at the then applicable rate provided in the Credit Agreement after the occurrence
of any Default set forth in Section 8.01(f) or (g) of the Credit Agreement, whether or not a
claim for post-filing or post-petition interest is allowed under applicable Law following
the institution of a proceeding under bankruptcy, insolvency or similar Laws), fees,
reimbursement obligations with respect to the Letters of Credit or otherwise, expenses or
otherwise; and




     (b) indemnifies and holds harmless each Secured Party for any and all costs and
expenses (including reasonable attorney’s fees and expenses) incurred by such Secured Party
in enforcing any rights under this Guaranty.


provided that each Guarantor shall only be liable under this Guaranty for the maximum
amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates
to such Guarantor, voidable under applicable Law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and each Guarantor specifically agrees that it shall not be necessary or
required that any Secured Party exercise any right, assert any claim or demand or enforce any
remedy whatsoever against any Loan Party or any other Person before or as a condition to the
obligations of such Guarantor hereunder.




3









 









     SECTION 2.2. Payments Set Aside. To the extent that any payment by or on behalf
of any Guarantor is made to the Administrative Agent, the L/C Issuer, any Lender or any other
Secured Party, or the Administrative Agent, the L/C Issuer, any Lender or any other Secured
Party exercises its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent, the L/C
Issuer, such Lender or such Secured Party in its discretion) to be repaid to a trustee, receiver
or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise,
then to the extent of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such payment had not
been made or such setoff had not occurred.




     SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects be a
continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in
full force and effect until the Termination Date has occurred. Each Guarantor jointly and
severally guarantees that the Secured Obligations will be paid strictly in accordance with the
terms of each Loan Document under which they arise, regardless of any Law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party with respect thereto. The liability of each Guarantor under this Guaranty shall
be joint and several, absolute, unconditional and irrevocable irrespective of:




     (a) any lack of validity, legality or enforceability of any Loan Document;




     (b) the failure of any Secured Party




     (i) to assert any claim or demand or to enforce any right or remedy against any
Loan Party or any other Person (including any other guarantor) under the provisions
of any Loan Document or otherwise, or




     (ii) to exercise any right or remedy against any other guarantor (including any
of the Company or any other Subsidiary Guarantor) of, or Collateral securing, any
Secured Obligations;




     (c) any change in the time, manner or place of payment of, or in any other term of, all
or any part of the Secured Obligations, or any other extension, compromise or renewal of any
Secured Obligation;




     (d) any reduction, limitation, impairment or termination of any Secured Obligations for
any reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and each Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Secured Obligations or otherwise;




     (e) any amendment to, rescission, waiver, or other modification of, or any consent to
or departure from, any of the terms of any Loan Document;



4









 






     (f) any addition, exchange or release of any Collateral or of any Person that is (or
will become) a guarantor (including a Guarantor hereunder) of the Secured Obligations, or
any surrender or non-perfection of any Collateral, or any amendment to or waiver or release
or addition to, or consent to or departure from, any other guaranty held by any Secured
Party securing any of the Secured Obligations; or




     (g) any other circumstance which might otherwise constitute a defense available to, or
a legal or equitable discharge of, any Loan Party, any surety or any guarantor.




     SECTION 2.4. Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby
authorized at any time and from time to time, after obtaining the prior written consent of the
Administrative Agent, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by
such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of any
Guarantor against any and all of the obligations of such Guarantor now or hereafter existing
under this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective
of whether or not such Lender or the L/C Issuer shall have made any demand under this Guaranty
or any other Loan Document and although such obligations of such Guarantor may be contingent or
unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the
branch or office holding such deposit or obligated on such indebtedness. The rights of each
Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or
their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the
Company and the Administrative Agent promptly after any such setoff and application;
provided that the failure to give such notice shall not affect the validity of such
setoff and application.




     SECTION 2.5. Waiver, etc. Each Guarantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Secured Obligations and
this Guaranty and any requirement that any Secured Party protect, secure, perfect or insure any
Lien, or any property subject thereto, or exhaust any right or take any action against any Loan
Party or any other Person (including any other guarantor) or entity or any Collateral securing
the Secured Obligations, as the case may be.




     SECTION 2.6. Postponement of Subrogation, etc. Each Guarantor agrees that it will
not exercise any rights which it may acquire by way of rights of subrogation under any Loan
Document to which it is a party, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from any Loan Party, in respect of any payment made under any Loan
Document or otherwise, until following the Termination Date. Any amount paid to any Guarantor
on account of any such subrogation rights prior to the Termination Date shall be held in trust
for the benefit of the Secured Parties and shall immediately be paid and turned over to the
Administrative Agent for the benefit of the Secured Parties in the exact form received by such
Guarantor (duly endorsed in favor of the Administrative Agent, if required), to be credited and
applied against the Secured Obligations, whether matured or



5









 







unmatured, in accordance with Section 2.7; provided that if any Guarantor
has made payment to the Secured Parties of all or any part of the Secured Obligations and the
Termination Date has occurred, then at such Guarantor’s request, the Administrative Agent (on
behalf of the Secured Parties) will, at the expense of such Guarantor, execute and deliver to
such Guarantor appropriate documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to such Guarantor of an interest in the
Secured Obligations resulting from such payment. In furtherance of the foregoing, at all times
prior to the Termination Date, each Guarantor shall refrain from taking any action or commencing
any proceeding against any Loan Party (or its successors or assigns, whether in connection with
a bankruptcy proceeding or otherwise) to recover any amounts in respect of payments made under
this Guaranty to any Secured Party.




     SECTION 2.7. Payments; Application. Each Guarantor agrees that all payments made
by such Guarantor hereunder will be made in Dollars to the Administrative Agent, without setoff,
counterclaim or other defense and in accordance with Sections 3.01 and 8.03 of the Credit
Agreement, free and clear of and without deduction for any Taxes, each Guarantor hereby agreeing
to comply with and be bound by the provisions of Sections 3.01 and 8.03 of the Credit Agreement
in respect of all payments made by it hereunder and the provisions of which Sections are hereby
incorporated into and made a part of this Guaranty by this reference as if set forth herein;
provided that references to the “Borrower” or “Borrowers” in such Sections shall be
deemed to be references to each Guarantor, and references to “this Agreement” in such Sections
shall be deemed to be references to this Guaranty.



ARTICLE III



REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into the Credit Agreement and make Credit
Extensions thereunder, and to induce Secured Parties to enter into Swap Contracts, each Guarantor
represents and warrants to each Secured Party as set forth below.




     SECTION 3.1. Credit Agreement Representations and Warranties. The representations
and warranties contained in Article V of the Credit Agreement, insofar as the representations
and warranties contained therein are applicable to any Guarantor and its properties, are true
and correct in all material respects, each such representation and warranty set forth in such
Article (insofar as applicable as aforesaid) and all other terms of the Credit Agreement to
which reference is made therein, together with all related definitions and ancillary provisions,
being hereby incorporated into this Guaranty by reference as though specifically set forth in
this Article.




     SECTION 3.2. Financial Condition, etc. Each Guarantor has knowledge of each other
Loan Party’s financial condition and affairs and has adequate means to obtain from each such
Loan Party on an ongoing basis information relating thereto and to such Loan Party’s ability to
pay and perform the Secured Obligations, and agrees to assume the responsibility for keeping,
and to keep, so informed for so long as this Guaranty is in effect. Each Guarantor acknowledges
and agrees that the Secured Parties shall have no obligation to investigate the financial
condition or affairs of any Loan Party for the benefit of such



6









 







Guarantor nor to advise such Guarantor of any fact respecting, or any change in, the
financial condition or affairs of any other Loan Party that might become known to any Secured
Party at any time, whether or not such Secured Party knows or believes or has reason to know or
believe that any such fact or change is unknown to such Guarantor, or might (or does) materially
increase the risk of such Guarantor as guarantor, or might (or would) affect the willingness of
such Guarantor to continue as a guarantor of the Secured Obligations.




     SECTION 3.3. Best Interests. It is in the best interests of each Guarantor to
execute this Guaranty inasmuch as such Guarantor will, as a result of being a Subsidiary of the
Company, derive substantial direct and indirect benefits from the Credit Extensions made from
time to time to the Borrowers by the Lenders and the L/C Issuer pursuant to the Credit Agreement
and the execution and delivery of Swap Contracts between any Borrower, other Loan Parties and
certain Secured Parties, and each Guarantor agrees that the Secured Parties are relying on this
representation in agreeing to make Credit Extensions to the Borrowers and enter into such Swap
Contracts.



ARTICLE IV



COVENANTS, ETC.




     Each Guarantor covenants and agrees that, at all times prior to the Termination Date, it will
perform, comply with and be bound by all of the agreements, covenants and obligations contained in
the Credit Agreement (including Articles VI and VII and Section 8.01(f) and (g) of the Credit
Agreement) which are applicable to such Guarantor or its properties, each such agreement, covenant
and obligation contained in the Credit Agreement and all other terms of the Credit Agreement to
which reference is made in this Article, together with all related definitions and ancillary
provisions, being hereby incorporated into this Guaranty by this reference as though specifically
set forth in this Article.



ARTICLE V



MISCELLANEOUS PROVISIONS





     SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and provisions thereof, including Article
X thereof. To the extent of any conflict between the terms contained in this Guaranty and the
terms contained in the Credit Agreement, the terms of the Credit Agreement shall control.




     SECTION 5.2. Binding on Successors, Transferees and Assigns; Assignment. This
Guaranty shall remain in full force and effect until the Termination Date has occurred, shall be
jointly and severally binding upon each Guarantor and its successors, transferees and assigns
and shall inure to the benefit of and be enforceable by each Secured Party and its successors,
transferees and assigns; provided that no Guarantor may (unless otherwise



7









 







permitted under the terms of the Credit Agreement) assign any of its obligations hereunder
without the prior written consent of all Lenders.




     SECTION 5.3. Amendments, etc. No amendment to or waiver of any provision of this
Guaranty, nor consent to any departure by any Guarantor from its obligations under this
Guaranty, shall in any event be effective unless the same shall be in writing and signed by the
Administrative Agent (on behalf of the Lenders or the Required Lenders, as the case may be,
pursuant to Section 10.01 of the Credit Agreement) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.




     SECTION 5.4. Notices. All notices and other communications provided for hereunder
shall be in writing or by facsimile and addressed, delivered or transmitted to the appropriate
party at the address or facsimile number of such party (in the case of any Guarantor, in care of
the Company) specified in the Credit Agreement or at such other address or facsimile number as
may be designated by such party in a notice to the other party. Any notice, if mailed and
properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier
service, shall be deemed given when received; any such notice, if transmitted by facsimile,
shall be deemed given when the confirmation of transmission thereof is received by the
transmitter.




     SECTION 5.5. Additional Guarantors. Upon the execution and delivery by any other
Person of a supplement in the form of Annex I hereto, such Person shall become a
“Guarantor” hereunder with the same force and effect as if it were originally a party to this
Guaranty and named as a “Guarantor” hereunder. The execution and delivery of such supplement
shall not require the consent of any other Guarantor hereunder, and the rights and obligations
of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition
of any new Guarantor as a party to this Guaranty.




     SECTION 5.6. Release of Guarantor. Upon the occurrence of the Termination Date,
this Guaranty and all obligations of each Guarantor hereunder shall terminate, without delivery
of any instrument or performance of any act by any party. In addition, at the request of the
Company, and at the sole expense of the Company, a Guarantor shall be released from its
obligations hereunder in the event that the Capital Securities of such Guarantor are Disposed of
in a transaction permitted by the Credit Agreement; provided that the Company shall have
delivered to the Administrative Agent, at least three Business Days prior to the date of the
proposed release, a written request for release identifying the relevant Guarantor and a
certification by the Company stating that such transaction is in compliance with the Loan
Documents.




     SECTION 5.7. No Waiver; Remedies. In addition to, and not in limitation of,
Sections 2.3 and 2.5, no failure on the part of any Secured Party to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by Law.



8









 






     SECTION 5.8. Section Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this Guaranty.




     SECTION 5.9. Severability. If any provision of this Guaranty or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Guaranty and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.




     SECTION 5.10. Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.




     (b) SUBMISSION TO JURISDICTION. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS 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 GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE 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 BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES,



9









 







TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. EACH
FOREIGN OBLIGOR HEREBY IRREVOCABLY APPOINTS THE COMPANY, AS ITS AUTHORIZED AGENT TO RECEIVE
ON ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT AND CONSENTS
TO THE SERVICE OF PROCESS OUT OF ANY SUCH COURTS BY MAILING A COPY THEREOF, BY REGISTERED
MAIL, POSTAGE PREPAID, TO SUCH AGENT AT SUCH ADDRESS, AND AGREES THAT SUCH SERVICE, TO THE
FULLEST EXTENT PERMITTED BY LAW: (I) SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF
PROCESS UPON IT IN ANY SUCH SUIT, ACTION OR PROCEEDING; AND (II) SHALL BE TAKEN AND HELD TO
BE VALID PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT. IF ANY AGENT APPOINTED BY ANY
PERSON PARTY HERETO REFUSES TO ACCEPT SERVICE, SUCH PERSON HEREBY AGREES THAT SERVICE UPON
IT BY MAIL SHALL UPON RECEIPT CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN CONTAINED SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF ANY OTHER PERSON PARTY HERETO TO BRING PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS
OF ANY OTHER JURISDICTION.




     SECTION 5.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 GUARANTY OR ANY
OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON 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 GUARANTY
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.




     SECTION 5.12. California Judicial Reference. If any action or proceeding is filed
in a court of the State of California by or against any party hereto in connection with any of
the transactions contemplated by this Agreement or any other Loan Document, (a) the court shall,
and is hereby directed to, make a general reference pursuant to California Code of Civil
Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear and
determine all of the issues in such action or proceeding (whether of fact or of Law) and to



10









 







report a statement of decision, provided that at the option of any party to such
proceeding, any such issues pertaining to a “provisional remedy” as defined in California Code
of Civil Procedure Section 1281.8 shall be heard and determined by the court; and (b) without
limiting the generality of Section 10.04 of the Credit Agreement, the Guarantors, jointly and
severally, shall be solely responsible to pay all fees and expenses of any referee appointed in
such action or proceeding.




     SECTION 5.13. Counterparts. This Guaranty may be executed by the parties hereto
in several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.




     SECTION 5.14. Judgment Currency. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder or any other Loan Document in one
currency into another currency, the rate of exchange used shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase the first currency with
such other currency on the Business Day preceding that on which final judgment is given. The
obligation of each Guarantor in respect of any such sum due from it to the Administrative Agent
or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment
in a currency (the “Judgment Currency”) other than that in which such sum is denominated
in accordance with the applicable provisions of this Agreement (the “Agreement
Currency”), be discharged only to the extent that on the Business Day following receipt by
the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is
less than the sum originally due to the Administrative Agent from any Guarantor in the Agreement
Currency, such Guarantor agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Administrative Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is greater than the sum
originally due to the Administrative Agent in such currency, the Administrative Agent agrees to
return the amount of any excess to such Guarantor (or to any other Person who may be entitled
thereto under applicable law).




     SECTION 5.15. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS AMONG THE PARTIES.



11









 





     IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered
by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	ASYST TECHNOLOGIES TAIWAN LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Taiwanese Subsidiary Guaranty









 






	 	 	 	 	 



	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:



KEYBANK NATIONAL ASSOCIATION,

  as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




13









 





ANNEX I to

the Taiwanese Subsidiary Guaranty




     THIS SUPPLEMENT, dated as of ___, 2007 (this “Supplement”), is to the
Taiwanese Subsidiary Guaranty, dated as of July ___, 2007 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the “Guaranty”), among the Guarantors
(such capitalized term, and other terms used in this Supplement, to have the meanings set forth in
Article I of the Guaranty) from time to time party thereto, in favor of KEYBANK NATIONAL
ASSOCIATION, as administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H :




     WHEREAS, pursuant to the provisions of Section 5.5 of the Guaranty, each of the undersigned is
becoming a Guarantor under the Guaranty; and



     WHEREAS, each of the undersigned desires to become a “Guarantor” under the Guaranty in order
to induce the Secured Parties to continue to extend Credit Extensions under the Credit Agreement;



     NOW, THEREFORE, in consideration of the premises, and for other consideration (the receipt and
sufficiency of which is hereby acknowledged), each of the undersigned agrees, for the benefit of
each Secured Party, as follows.



     SECTION 1. Party to Guaranty, etc. In accordance with the terms of the Guaranty, by
its signature below, each of the undersigned hereby irrevocably agrees to become a Guarantor under
the Guaranty with the same force and effect as if it were an original signatory thereto and each of
the undersigned hereby (a) agrees to be bound by and comply with all of the terms and provisions of
the Guaranty applicable to it as a Guarantor and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true and correct as of the
date hereof. In furtherance of the foregoing, each reference to a “Guarantor” and/or “Guarantors”
in the Guaranty shall be deemed to include each of the undersigned.



     SECTION 2. Waiver, Agreements, etc. Each of the undersigned hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to any of the Secured
Obligations, this Supplement and the Guaranty and any requirement that any Secured Party protect,
secure, perfect or insure any Lien, or any property subject thereto, or exhaust any right or take
any action against any Loan Party or any other Person (including any other Guarantor) or entity or
any Collateral securing the Secured Obligations, as the case may be.



     SECTION 3. Representations. Each of the undersigned hereby represents and warrants
that this Supplement has been duly authorized, executed and delivered by it and that this
Supplement and the Guaranty constitute the legal, valid and binding obligation of each of the
undersigned, enforceable against it in accordance with its terms.



     SECTION 4. Full Force of Guaranty. Except as expressly supplemented hereby, the
Guaranty shall remain in full force and effect in accordance with its terms.



 









 





     SECTION 5. Severability. If any provision of this Supplement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Supplement and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



     SECTION 6. Indemnity; Fees and Expenses, etc. Without limiting the provisions of any
other Loan Document, each of the undersigned agrees to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses incurred in connection with this Supplement, including reasonable
attorney’s fees and expenses of the Administrative Agent’s counsel.



     SECTION 7. Governing Law, Entire Agreement, etc. THIS SUPPLEMENT WILL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.



     SECTION 8. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Supplement, the Guaranty or any other Loan Document, (a) the
court shall, and is hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear
and determine all of the issues in such action or proceeding (whether of fact or of Law) and to
report a statement of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Guarantors (including the undersigned), jointly and
severally, shall be solely responsible to pay all fees and expenses of any referee appointed in
such action or proceeding.



     SECTION 9. Counterparts. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.



     SECTION 10. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



2









 





     IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be duly executed and
delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:


KEYBANK NATIONAL ASSOCIATION,

  as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




 









 




EXHIBIT
F-5




KOREAN SUBSIDIARY GUARANTY




     This KOREAN SUBSIDIARY GUARANTY, dated as of July ___, 2007 (as amended, supplemented, amended
and restated or otherwise modified from time to time, this “Guaranty”), is made by ASYST
KOREA, LTD., a Korean corporation (“AKL”), ASYST SHINKO KOREA, INC., a Korean corporation
(“ASK”), and each Korean Subsidiary of ASYST TECHNOLOGIES, INC., a California corporation
(the “Company”), from time to time party hereto (each individually, a “Guarantor”
and, collectively, the “Guarantors”), in favor of KEYBANK NATIONAL ASSOCIATION, as
administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



WITNESSETH:




     WHEREAS, pursuant to a Credit Agreement, dated as of July ___, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Company, Asyst Japan, Inc., a Japanese corporation, Asyst Shinko, Inc., a Japanese
corporation and certain other Subsidiaries of the Company party thereto from time to time (each a
“Designated Borrower” and, collectively with the Company, AJI and ASI, the
“Borrowers”), the Lenders and the Administrative Agent, the Lenders and the L/C Issuer have
extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, as a condition precedent to the making of the Credit Extensions under the Credit
Agreement, each Guarantor is required to execute and deliver this Guaranty.



     NOW, THEREFORE, for good and valuable consideration the receipt of which is hereby
acknowledged, and in order to induce the Lenders and the L/C Issuer to make Credit Extensions to
the Borrowers, and to induce Secured Parties to enter into Swap Contracts, each Guarantor jointly
and severally agrees, for the benefit of each Secured Party, as follows:



ARTICLE I

DEFINITIONS




     SECTION 1.1. Certain Terms. The following terms when used in this Guaranty,
including its preamble and recitals, shall have the following meanings (such definitions to be
equally applicable to the singular and plural forms thereof):



     “Administrative Agent” is defined in the preamble.



     “AJI” is defined in the first recital.



     “AKL” is defined in the preamble.



     “ASK” is defined in the preamble.



 









 





     “ASI” is defined in the first recital.



     “Borrowers” is defined in the first recital.



     “Company” is defined in the preamble.



     “Credit Agreement” is defined in the first recital.



     “Guarantor” and “Guarantors” are defined in the preamble.



     “Guaranty” is defined in the preamble.



     “Secured Obligations” means all Obligations of the Foreign Obligors.



     “Termination Date” means the date on which all Obligations have been paid in full in
cash, all Letters of Credit have been terminated or have expired (or have been Cash
Collateralized), all Secured Hedge Agreements have been terminated or have otherwise been provided
for on terms reasonably satisfactory to the parties, and all Commitments shall have been
terminated.



     SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Guaranty, including its preamble and recitals, have
the meanings provided in the Credit Agreement.



ARTICLE II

GUARANTY PROVISIONS




     SECTION 2.1. Guaranty. Each Guarantor hereby jointly and severally absolutely,
unconditionally and irrevocably




     (a) guarantees the full and punctual payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise, of all Secured
Obligations now or hereafter existing, whether for principal, interest (including interest
accruing at the then applicable rate provided in the Credit Agreement after the occurrence
of any Default set forth in Section 8.01(f) or (g) of the Credit Agreement, whether or not a
claim for post-filing or post-petition interest is allowed under applicable Law following
the institution of a proceeding under bankruptcy, insolvency or similar Laws), fees,
reimbursement obligations with respect to the Letters of Credit or otherwise, expenses or
otherwise; and




     (b) indemnifies and holds harmless each Secured Party for any and all costs and
expenses (including reasonable attorney’s fees and expenses) incurred by such Secured Party
in enforcing any rights under this Guaranty.


provided that each Guarantor shall only be liable under this Guaranty for the maximum
amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates
to such Guarantor, voidable under applicable Law relating to fraudulent conveyance or fraudulent


3









 






transfer, and not for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and each Guarantor specifically agrees that it shall not be necessary or
required that any Secured Party exercise any right, assert any claim or demand or enforce any
remedy whatsoever against any Loan Party or any other Person before or as a condition to the
obligations of such Guarantor hereunder.




     SECTION 2.2. Payments Set Aside. To the extent that any payment by or on behalf of
any Guarantor is made to the Administrative Agent, the L/C Issuer, any Lender or any other Secured
Party, or the Administrative Agent, the L/C Issuer, any Lender or any other Secured Party exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer,
such Lender or such Secured Party in its discretion) to be repaid to a trustee, receiver, or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then to
the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred.



     SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects be a
continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full
force and effect until the Termination Date has occurred. Each Guarantor jointly and severally
guarantees that the Secured Obligations will be paid strictly in accordance with the terms of each
Loan Document under which they arise, regardless of any Law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with
respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several,
absolute, unconditional and irrevocable irrespective of:




     (a) any lack of validity, legality or enforceability of any Loan Document;




     (b) the failure of any Secured Party




     (i) to assert any claim or demand or to enforce any right or remedy against any
Loan Party or any other Person (including any other guarantor) under the provisions
of any Loan Document or otherwise, or




     (ii) to exercise any right or remedy against any other guarantor (including any
of the Company or any other Subsidiary Guarantor) of, or Collateral securing, any
Secured Obligations;




     (c) any change in the time, manner or place of payment of, or in any other term of, all
or any part of the Secured Obligations, or any other extension, compromise or renewal of any
Secured Obligation;




     (d) any reduction, limitation, impairment or termination of any Secured Obligations for
any reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and each Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity,



4









 







compromise, unenforceability of, or any other event or occurrence affecting, any
Secured Obligations or otherwise;




     (e) any amendment to, rescission, waiver, or other modification of, or any consent to
or departure from, any of the terms of any Loan Document;




     (f) any addition, exchange or release of any Collateral or of any Person that is (or
will become) a guarantor (including a Guarantor hereunder) of the Secured Obligations, or
any surrender or non-perfection of any Collateral, or any amendment to or waiver or release
or addition to, or consent to or departure from, any other guaranty held by any Secured
Party securing any of the Secured Obligations; or




     (g) any other circumstance which might otherwise constitute a defense available to, or
a legal or equitable discharge of, any Loan Party, any surety or any guarantor.



     SECTION 2.4. Setoff. If an Event of Default shall have occurred and be continuing,
each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any
time and from time to time, after obtaining the prior written consent of the Administrative Agent,
to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or
any such Affiliate to or for the credit or the account of any Guarantor against any and all of the
obligations of such Guarantor now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Guaranty or any other Loan Document and although such
obligations of such Guarantor may be contingent or unmatured or are owed to a branch or office of
such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated
on such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates
under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Company and the Administrative Agent promptly after any such setoff and
application; provided that the failure to give such notice shall not affect the validity of
such setoff and application.



     SECTION 2.5. Waiver, etc. Each Guarantor hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the Secured Obligations and this Guaranty
and any requirement that any Secured Party protect, secure, perfect or insure any Lien, or any
property subject thereto, or exhaust any right or take any action against any Loan Party or any
other Person (including any other guarantor) or entity or any Collateral securing the Secured
Obligations, as the case may be.



     SECTION 2.6. Postponement of Subrogation, etc. Each Guarantor agrees that it will
not exercise any rights which it may acquire by way of rights of subrogation under any Loan
Document to which it is a party, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from any Loan Party, in respect of any payment made under any Loan
Document or otherwise, until following the Termination Date. Any amount paid to any



5









 







Guarantor on account of any such subrogation rights prior to the Termination Date shall be
held in trust for the benefit of the Secured Parties and shall immediately be paid and turned over
to the Administrative Agent for the benefit of the Secured Parties in the exact form received by
such Guarantor (duly endorsed in favor of the Administrative Agent, if required), to be credited
and applied against the Secured Obligations, whether matured or unmatured, in accordance with
Section 2.7; provided that if any Guarantor has made payment to the Secured Parties
of all or any part of the Secured Obligations and the Termination Date has occurred, then at such
Guarantor’s request, the Administrative Agent (on behalf of the Secured Parties) will, at the
expense of such Guarantor, execute and deliver to such Guarantor appropriate documents (without
recourse and without representation or warranty) necessary to evidence the transfer by subrogation
to such Guarantor of an interest in the Secured Obligations resulting from such payment. In
furtherance of the foregoing, at all times prior to the Termination Date, each Guarantor shall
refrain from taking any action or commencing any proceeding against any Loan Party (or its
successors or assigns, whether in connection with a bankruptcy proceeding or otherwise) to recover
any amounts in respect of payments made under this Guaranty to any Secured Party.



     SECTION 2.7. Payments; Application. Each Guarantor agrees that all payments made by
such Guarantor hereunder will be made in Dollars to the Administrative Agent, without setoff,
counterclaim or other defense and in accordance with Sections 3.01 and 8.03 of the Credit
Agreement, free and clear of and without deduction for any Taxes, each Guarantor hereby agreeing to
comply with and be bound by the provisions of Sections 3.01 and 8.03 of the Credit Agreement in
respect of all payments made by it hereunder and the provisions of which Sections are hereby
incorporated into and made a part of this Guaranty by this reference as if set forth herein;
provided that references to the “Borrower” or “Borrowers” in such Sections shall be deemed
to be references to each Guarantor, and references to “this Agreement” in such Sections shall be
deemed to be references to this Guaranty.



ARTICLE III

REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into the Credit Agreement and make Credit
Extensions thereunder, and to induce Secured Parties to enter into Swap Contracts, each Guarantor
represents and warrants to each Secured Party as set forth below.



     SECTION 3.1. Credit Agreement Representations and Warranties. The representations
and warranties contained in Article V of the Credit Agreement, insofar as the representations and
warranties contained therein are applicable to any Guarantor and its properties, are true and
correct in all material respects, each such representation and warranty set forth in such Article
(insofar as applicable as aforesaid) and all other terms of the Credit Agreement to which reference
is made therein, together with all related definitions and ancillary provisions, being hereby
incorporated into this Guaranty by reference as though specifically set forth in this Article.



     SECTION 3.2. Financial Condition, etc. Each Guarantor has knowledge of each other
Loan Party’s financial condition and affairs and has adequate means to obtain from each such



6









 







Loan Party on an ongoing basis information relating thereto and to such Loan Party’s ability
to pay and perform the Secured Obligations, and agrees to assume the responsibility for keeping,
and to keep, so informed for so long as this Guaranty is in effect. Each Guarantor acknowledges
and agrees that the Secured Parties shall have no obligation to investigate the financial condition
or affairs of any Loan Party for the benefit of such Guarantor nor to advise such Guarantor of any
fact respecting, or any change in, the financial condition or affairs of any other Loan Party that
might become known to any Secured Party at any time, whether or not such Secured Party knows or
believes or has reason to know or believe that any such fact or change is unknown to such
Guarantor, or might (or does) materially increase the risk of such Guarantor as guarantor, or might
(or would) affect the willingness of such Guarantor to continue as a guarantor of the Secured
Obligations.



     SECTION 3.3. Best Interests. It is in the best interests of each Guarantor to
execute this Guaranty inasmuch as such Guarantor will, as a result of being a Subsidiary of the
Company, derive substantial direct and indirect benefits from the Credit Extensions made from time
to time to the Borrowers by the Lenders and the L/C Issuer pursuant to the Credit Agreement and the
execution and delivery of Swap Contracts between any Borrower, other Loan Parties and certain
Secured Parties, and each Guarantor agrees that the Secured Parties are relying on this
representation in agreeing to make Credit Extensions to the Borrowers and enter into such Swap
Contracts.



ARTICLE IV

COVENANTS, ETC.




     Each Guarantor covenants and agrees that, at all times prior to the Termination Date, it will
perform, comply with and be bound by all of the agreements, covenants and obligations contained in
the Credit Agreement (including Articles VI and VII and Section 8.01(f) and (g) of the Credit
Agreement) which are applicable to such Guarantor or its properties, each such agreement, covenant
and obligation contained in the Credit Agreement and all other terms of the Credit Agreement to
which reference is made in this Article, together with all related definitions and ancillary
provisions, being hereby incorporated into this Guaranty by this reference as though specifically
set forth in this Article.



ARTICLE V

MISCELLANEOUS PROVISIONS




     SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and provisions thereof, including Article X
thereof. To the extent of any conflict between the terms contained in this Guaranty and the terms
contained in the Credit Agreement, the terms of the Credit Agreement shall control.



     SECTION 5.2. Binding on Successors, Transferees and Assigns; Assignment. This
Guaranty shall remain in full force and effect until the Termination Date has occurred, shall be



7









 







jointly and severally binding upon each Guarantor and its successors, transferees and assigns
and shall inure to the benefit of and be enforceable by each Secured Party and its successors,
transferees and assigns; provided that no Guarantor may (unless otherwise permitted under
the terms of the Credit Agreement) assign any of its obligations hereunder without the prior
written consent of all Lenders.



     SECTION 5.3. Amendments, etc. No amendment to or waiver of any provision of this
Guaranty, nor consent to any departure by any Guarantor from its obligations under this Guaranty,
shall in any event be effective unless the same shall be in writing and signed by the
Administrative Agent (on behalf of the Lenders or the Required Lenders, as the case may be,
pursuant to Section 10.01 of the Credit Agreement) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.



     SECTION 5.4. Notices. All notices and other communications provided for hereunder
shall be in writing or by facsimile and addressed, delivered or transmitted to the appropriate
party at the address or facsimile number of such party (in the case of any Guarantor, in care of
the Company) specified in the Credit Agreement or at such other address or facsimile number as may
be designated by such party in a notice to the other party. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall
be deemed given when received; any such notice, if transmitted by facsimile, shall be deemed given
when the confirmation of transmission thereof is received by the transmitter.



     SECTION 5.5. Additional Guarantors. Upon the execution and delivery by any other
Person of a supplement in the form of Annex I hereto, such Person shall become a
“Guarantor” hereunder with the same force and effect as if it were originally a party to this
Guaranty and named as a “Guarantor” hereunder. The execution and delivery of such supplement shall
not require the consent of any other Guarantor hereunder, and the rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new
Guarantor as a party to this Guaranty.



     SECTION 5.6. Release of Guarantor. Upon the occurrence of the Termination Date, this
Guaranty and all obligations of each Guarantor hereunder shall terminate, without delivery of any
instrument or performance of any act by any party. In addition, at the request of the Company, and
at the sole expense of the Company, a Guarantor shall be released from its obligations hereunder in
the event that the Capital Securities of such Guarantor are Disposed of in a transaction permitted
by the Credit Agreement; provided that the Company shall have delivered to the
Administrative Agent, at least three Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Guarantor and a certification by the Company
stating that such transaction is in compliance with the Loan Documents.



     SECTION 5.7. No Waiver; Remedies. In addition to, and not in limitation of,
Sections 2.3 and 2.5, no failure on the part of any Secured Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by Law.



8









 





     SECTION 5.8. Section Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this Guaranty.



     SECTION 5.9. Severability. If any provision of this Guaranty or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Guaranty and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     SECTION 5.10. Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




     (b) SUBMISSION TO JURISDICTION. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS 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 GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE 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 BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE



9









 







OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. EACH
FOREIGN OBLIGOR HEREBY IRREVOCABLY APPOINTS THE COMPANY, AS ITS AUTHORIZED AGENT TO RECEIVE
ON ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT AND CONSENTS
TO THE SERVICE OF PROCESS OUT OF ANY SUCH COURTS BY MAILING A COPY THEREOF, BY REGISTERED
MAIL, POSTAGE PREPAID, TO SUCH AGENT AT SUCH ADDRESS, AND AGREES THAT SUCH SERVICE, TO THE
FULLEST EXTENT PERMITTED BY LAW: (I) SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF
PROCESS UPON IT IN ANY SUCH SUIT, ACTION OR PROCEEDING; AND (II) SHALL BE TAKEN AND HELD TO
BE VALID PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT. IF ANY AGENT APPOINTED BY ANY
PERSON PARTY HERETO REFUSES TO ACCEPT SERVICE, SUCH PERSON HEREBY AGREES THAT SERVICE UPON
IT BY MAIL SHALL UPON RECEIPT CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN CONTAINED SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF ANY OTHER PERSON PARTY HERETO TO BRING PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS
OF ANY OTHER JURISDICTION.



     SECTION 5.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 GUARANTY OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 GUARANTY AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     SECTION 5.12. California Judicial Reference. If any action or proceeding is filed in
a court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is
hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section
638 to a referee (who shall be a single active or retired judge) to hear and determine all of the
issues in such action or proceeding (whether of fact or of Law) and to report a statement of
decision, provided that at the option of any party to such proceeding, any such



10









 







issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Guarantors, jointly and severally, shall be solely
responsible to pay all fees and expenses of any referee appointed in such action or proceeding.



     SECTION 5.13. Counterparts. This Guaranty may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.



     SECTION 5.14. Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency
into another currency, the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is given. The obligation of
each Guarantor in respect of any such sum due from it to the Administrative Agent or the Lenders
hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which such sum is denominated in accordance with
the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only
to the extent that on the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from any Guarantor in the Agreement Currency, such Guarantor agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or
the Person to whom such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to such Guarantor (or
to any other Person who may be entitled thereto under applicable law).



     SECTION 5.15. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



11









 





     IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered
by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	ASYST KOREA, LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	ASYST SHINKO KOREA, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




12









 





	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:


KEYBANK NATIONAL ASSOCIATION,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




13









 





ANNEX I to

the Korean Subsidiary Guaranty




     THIS SUPPLEMENT, dated as of July ___, 2007 (this “Supplement”), is to the Korean
Subsidiary Guaranty, dated as of July ___, 2007 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the “Guaranty”), among the Guarantors (such
capitalized term, and other terms used in this Supplement, to have the meanings set forth in
Article I of the Guaranty) from time to time party thereto, in favor of KEYBANK NATIONAL
ASSOCIATION, as administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



W I T N
E S S E T H :




     WHEREAS, pursuant to the provisions of Section 5.5 of the Guaranty, each of the undersigned is
becoming a Guarantor under the Guaranty; and



     WHEREAS, each of the undersigned desires to become a “Guarantor” under the Guaranty in order
to induce the Secured Parties to continue to extend Credit Extensions under the Credit Agreement;



     NOW, THEREFORE, in consideration of the premises, and for other consideration (the receipt and
sufficiency of which is hereby acknowledged), each of the undersigned agrees, for the benefit of
each Secured Party, as follows.



     SECTION 1. Party to Guaranty, etc. In accordance with the terms of the Guaranty, by
its signature below, each of the undersigned hereby irrevocably agrees to become a Guarantor under
the Guaranty with the same force and effect as if it were an original signatory thereto and each of
the undersigned hereby (a) agrees to be bound by and comply with all of the terms and provisions of
the Guaranty applicable to it as a Guarantor and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true and correct as of the
date hereof. In furtherance of the foregoing, each reference to a “Guarantor” and/or “Guarantors”
in the Guaranty shall be deemed to include each of the undersigned.



     SECTION 2. Waiver, Agreements, etc. Each of the undersigned hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to any of the Secured
Obligations, this Supplement and the Guaranty and any requirement that any Secured Party protect,
secure, perfect or insure any Lien, or any property subject thereto, or exhaust any right or take
any action against any Loan Party or any other Person (including any other Guarantor) or entity or
any Collateral securing the Secured Obligations, as the case may be.



     SECTION 3. Representations. Each of the undersigned hereby represents and warrants
that this Supplement has been duly authorized, executed and delivered by it and that this
Supplement and the Guaranty constitute the legal, valid and binding obligation of each of the
undersigned, enforceable against it in accordance with its terms.



     SECTION 4. Full Force of Guaranty. Except as expressly supplemented hereby, the
Guaranty shall remain in full force and effect in accordance with its terms.



1









 





     SECTION 5. Severability. If any provision of this Supplement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Supplement and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



     SECTION 6. Indemnity; Fees and Expenses, etc. Without limiting the provisions of any
other Loan Document, each of the undersigned agrees to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses incurred in connection with this Supplement, including reasonable
attorney’s fees and expenses of the Administrative Agent’s counsel.



     SECTION 7. Governing Law, Entire Agreement, etc. THIS SUPPLEMENT WILL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.



     SECTION 8. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Supplement, the Guaranty or any other Loan Document, (a) the
court shall, and is hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear
and determine all of the issues in such action or proceeding (whether of fact or of Law) and to
report a statement of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Guarantors (including the undersigned), jointly and
severally, shall be solely responsible to pay all fees and expenses of any referee appointed in
such action or proceeding.



     SECTION 9. Counterparts. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.



     SECTION 10. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



2









 





     IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be duly executed and
delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:


KEYBANK NATIONAL ASSOCIATION

  as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




1









 




EXHIBIT
F-6




ASI SUBSIDIARY GUARANTY




     This ASI SUBSIDIARY GUARANTY, dated as of July 27, 2007 (as amended, supplemented, amended and
restated or otherwise modified from time to time, this “Guaranty”), is made by ASYST SHINKO
TAIWAN, INC., a Taiwanese corporation (“ASI Taiwan”), ASYST SHINKO AMERICA, INC., a
Calafornia corporation (“ASAM”), and each Subsidiary of ASYST SHINKO, INC., a Japanese
corporation (“ASI”), from time to time party hereto (each individually, a
“Guarantor” and, collectively, the “Guarantors”), in favor of KEYBANK NATIONAL
ASSOCIATION, as administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



W I T N
E S S E T H:




     WHEREAS, pursuant to a Credit Agreement, dated as of July 27, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Asyst Technologies, Inc., a California corporation (the “Company”), Asyst Japan,
Inc., a Japanese corporation (“AJI”), ASI and certain other Subsidiaries of the Company
party thereto from time to time (each a “Designated Borrower” and, collectively with the
Company, AJI and ASI, the “Borrowers”), the Lenders and the Administrative Agent, the
Lenders and the L/C Issuer have extended Commitments to make Credit Extensions to the Borrowers;
and



     WHEREAS, as a condition precedent to the making of the Credit Extensions under the Credit
Agreement, each Guarantor is required to execute and deliver this Guaranty.



     NOW, THEREFORE, for good and valuable consideration the receipt of which is hereby
acknowledged, and in order to induce the Lenders and the L/C Issuer to make Credit Extensions to
the Borrowers, and to induce Secured Parties to enter into Swap Contracts, each Guarantor jointly
and severally agrees, for the benefit of each Secured Party, as follows:



ARTICLE I

DEFINITIONS




     SECTION 1.1. Certain Terms. The following terms when used in this Guaranty,
including its preamble and recitals, shall have the following meanings (such definitions to be
equally applicable to the singular and plural forms thereof):



     “Administrative Agent” is defined in the preamble.



     “AJI” is defined in the first recital.



     “ASI” is defined in the preamble.



     “Borrowers” is defined in the first recital.



 









 





     “Company” is defined in the first recital.



     “Credit Agreement” is defined in the first recital.



     “Guarantor” and “Guarantors” are defined in the preamble.



     “Guaranty” is defined in the preamble.



     “Secured Obligations” means all Obligations of the Foreign Obligors.



     “Termination Date” means the date on which all Obligations have been paid in full in
cash, all Letters of Credit have been terminated or have expired (or have been Cash
Collateralized), all Secured Hedge Agreements have been terminated or have otherwise been provided
for on terms reasonably satisfactory to the parties, and all Commitments shall have been
terminated.



     SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Guaranty, including its preamble and recitals, have
the meanings provided in the Credit Agreement.



ARTICLE II

GUARANTY PROVISIONS




     SECTION 2.1. Guaranty. Each Guarantor hereby jointly and severally absolutely,
unconditionally and irrevocably




     (a) guarantees the full and punctual payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise, of all Secured
Obligations now or hereafter existing, whether for principal, interest (including interest
accruing at the then applicable rate provided in the Credit Agreement after the occurrence
of any Default set forth in Section 8.01(f) or (g) of the Credit Agreement, whether or not a
claim for post-filing or post-petition interest is allowed under applicable Law following
the institution of a proceeding under bankruptcy, insolvency or similar Laws), fees,
reimbursement obligations with respect to the Letters of Credit or otherwise, expenses or
otherwise; and




     (b) indemnifies and holds harmless each Secured Party for any and all costs and
expenses (including reasonable attorney’s fees and expenses) incurred by such Secured Party
in enforcing any rights under this Guaranty.


provided that each Guarantor shall only be liable under this Guaranty for the maximum
amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates
to such Guarantor, voidable under applicable Law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and each Guarantor specifically agrees that it shall not be necessary or
required that any Secured Party exercise any right, assert any claim or demand or enforce any


3









 






remedy whatsoever against any Loan Party or any other Person before or as a condition to the
obligations of such Guarantor hereunder.




     SECTION 2.2. Payments Set Aside. To the extent that any payment by or on behalf of
any Guarantor is made to the Administrative Agent, the L/C Issuer, any Lender or any other Secured
Party, or the Administrative Agent, the L/C Issuer, any Lender or any other Secured Party exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer,
such Lender or such Secured Party in its discretion) to be repaid to a trustee, receiver, or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then to
the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred.



     SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects be a
continuing, absolute, unconditional and irrevocable guaranty of payment, and shall remain in full
force and effect until the Termination Date has occurred. Each Guarantor jointly and severally
guarantees that the Secured Obligations will be paid strictly in accordance with the terms of each
Loan Document under which they arise, regardless of any Law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with
respect thereto. The liability of each Guarantor under this Guaranty shall be joint and several,
absolute, unconditional and irrevocable irrespective of:




     (a) any lack of validity, legality or enforceability of any Loan Document;




     (b) the failure of any Secured Party




     (i) to assert any claim or demand or to enforce any right or remedy against any
Loan Party or any other Person (including any other guarantor) under the provisions
of any Loan Document or otherwise, or




     (ii) to exercise any right or remedy against any other guarantor (including any
of the Company or any other Subsidiary Guarantor) of, or Collateral securing, any
Secured Obligations;




     (c) any change in the time, manner or place of payment of, or in any other term of, all
or any part of the Secured Obligations, or any other extension, compromise or renewal of any
Secured Obligation;




     (d) any reduction, limitation, impairment or termination of any Secured Obligations for
any reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and each Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Secured Obligations or otherwise;



4









 






     (e) any amendment to, rescission, waiver, or other modification of, or any consent to
or departure from, any of the terms of any Loan Document;




     (f) any addition, exchange or release of any Collateral or of any Person that is (or
will become) a guarantor (including a Guarantor hereunder) of the Secured Obligations, or
any surrender or non-perfection of any Collateral, or any amendment to or waiver or release
or addition to, or consent to or departure from, any other guaranty held by any Secured
Party securing any of the Secured Obligations; or




     (g) any other circumstance which might otherwise constitute a defense available to, or
a legal or equitable discharge of, any Loan Party, any surety or any guarantor.



     SECTION 2.4. Setoff. If an Event of Default shall have occurred and be continuing,
each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any
time and from time to time, after obtaining the prior written consent of the Administrative Agent,
to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or
any such Affiliate to or for the credit or the account of any Guarantor against any and all of the
obligations of such Guarantor now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Guaranty or any other Loan Document and although such
obligations of such Guarantor may be contingent or unmatured or are owed to a branch or office of
such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated
on such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates
under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Company and the Administrative Agent promptly after any such setoff and
application; provided that the failure to give such notice shall not affect the validity of
such setoff and application.



     SECTION 2.5. Waiver, etc. Each Guarantor hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the Secured Obligations and this Guaranty
and any requirement that any Secured Party protect, secure, perfect or insure any Lien, or any
property subject thereto, or exhaust any right or take any action against any Loan Party or any
other Person (including any other guarantor) or entity or any Collateral securing the Secured
Obligations, as the case may be.



     SECTION 2.6. Postponement of Subrogation, etc. Each Guarantor agrees that it will
not exercise any rights which it may acquire by way of rights of subrogation under any Loan
Document to which it is a party, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from any Loan Party, in respect of any payment made under any Loan
Document or otherwise, until following the Termination Date. Any amount paid to any Guarantor on
account of any such subrogation rights prior to the Termination Date shall be held in trust for the
benefit of the Secured Parties and shall immediately be paid and turned over to the Administrative
Agent for the benefit of the Secured Parties in the exact form received by such



5









 







Guarantor (duly endorsed in favor of the Administrative Agent, if required), to be credited
and applied against the Secured Obligations, whether matured or unmatured, in accordance with
Section 2.7; provided that if any Guarantor has made payment to the Secured Parties
of all or any part of the Secured Obligations and the Termination Date has occurred, then at such
Guarantor’s request, the Administrative Agent (on behalf of the Secured Parties) will, at the
expense of such Guarantor, execute and deliver to such Guarantor appropriate documents (without
recourse and without representation or warranty) necessary to evidence the transfer by subrogation
to such Guarantor of an interest in the Secured Obligations resulting from such payment. In
furtherance of the foregoing, at all times prior to the Termination Date, each Guarantor shall
refrain from taking any action or commencing any proceeding against any Loan Party (or its
successors or assigns, whether in connection with a bankruptcy proceeding or otherwise) to recover
any amounts in respect of payments made under this Guaranty to any Secured Party.



     SECTION 2.7. Payments; Application. Each Guarantor agrees that all payments made by
such Guarantor hereunder will be made in Dollars to the Administrative Agent, without setoff,
counterclaim or other defense and in accordance with Sections 3.01 and 8.03 of the Credit
Agreement, free and clear of and without deduction for any Taxes, each Guarantor hereby agreeing to
comply with and be bound by the provisions of Sections 3.01 and 8.03 of the Credit Agreement in
respect of all payments made by it hereunder and the provisions of which Sections are hereby
incorporated into and made a part of this Guaranty by this reference as if set forth herein;
provided that references to the “Borrower” or “Borrowers” in such Sections shall be deemed
to be references to each Guarantor, and references to “this Agreement” in such Sections shall be
deemed to be references to this Guaranty.



ARTICLE III

REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into the Credit Agreement and make Credit
Extensions thereunder, and to induce Secured Parties to enter into Swap Contracts, each Guarantor
represents and warrants to each Secured Party as set forth below.



     SECTION 3.1. Credit Agreement Representations and Warranties. The representations
and warranties contained in Article V of the Credit Agreement, insofar as the representations and
warranties contained therein are applicable to any Guarantor and its properties, are true and
correct in all material respects, each such representation and warranty set forth in such Article
(insofar as applicable as aforesaid) and all other terms of the Credit Agreement to which reference
is made therein, together with all related definitions and ancillary provisions, being hereby
incorporated into this Guaranty by reference as though specifically set forth in this Article.



     SECTION 3.2. Financial Condition, etc. Each Guarantor has knowledge of each other
Loan Party’s financial condition and affairs and has adequate means to obtain from each such Loan
Party on an ongoing basis information relating thereto and to such Loan Party’s ability to pay and
perform the Secured Obligations, and agrees to assume the responsibility for keeping, and to keep,
so informed for so long as this Guaranty is in effect. Each Guarantor acknowledges



6









 







and agrees that the Secured Parties shall have no obligation to investigate the financial
condition or affairs of any Loan Party for the benefit of such Guarantor nor to advise such
Guarantor of any fact respecting, or any change in, the financial condition or affairs of any other
Loan Party that might become known to any Secured Party at any time, whether or not such Secured
Party knows or believes or has reason to know or believe that any such fact or change is unknown to
such Guarantor, or might (or does) materially increase the risk of such Guarantor as guarantor, or
might (or would) affect the willingness of such Guarantor to continue as a guarantor of the Secured
Obligations.



     SECTION 3.3. Best Interests. It is in the best interests of each Guarantor to
execute this Guaranty inasmuch as such Guarantor will, as a result of being a Subsidiary of the
Company, derive substantial direct and indirect benefits from the Credit Extensions made from time
to time to the Borrowers by the Lenders and the L/C Issuer pursuant to the Credit Agreement and the
execution and delivery of Swap Contracts between any Borrower, other Loan Parties and certain
Secured Parties, and each Guarantor agrees that the Secured Parties are relying on this
representation in agreeing to make Credit Extensions to the Borrowers and enter into such Swap
Contracts.



ARTICLE IV

COVENANTS, ETC.




     Each Guarantor covenants and agrees that, at all times prior to the Termination Date, it will
perform, comply with and be bound by all of the agreements, covenants and obligations contained in
the Credit Agreement (including Articles VI and VII and Section 8.01(f) and (g) of the Credit
Agreement) which are applicable to such Guarantor or its properties, each such agreement, covenant
and obligation contained in the Credit Agreement and all other terms of the Credit Agreement to
which reference is made in this Article, together with all related definitions and ancillary
provisions, being hereby incorporated into this Guaranty by this reference as though specifically
set forth in this Article.



ARTICLE V

MISCELLANEOUS PROVISIONS




     SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and provisions thereof, including Article X
thereof. To the extent of any conflict between the terms contained in this Guaranty and the terms
contained in the Credit Agreement, the terms of the Credit Agreement shall control.



     SECTION 5.2. Binding on Successors, Transferees and Assigns; Assignment. This
Guaranty shall remain in full force and effect until the Termination Date has occurred, shall be
jointly and severally binding upon each Guarantor and its successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Secured Party and its successors,
transferees and assigns; provided that no Guarantor may (unless otherwise permitted under
the



7









 







terms of the Credit Agreement) assign any of its obligations hereunder without the prior
written consent of all Lenders.



     SECTION 5.3. Amendments, etc. No amendment to or waiver of any provision of this
Guaranty, nor consent to any departure by any Guarantor from its obligations under this Guaranty,
shall in any event be effective unless the same shall be in writing and signed by the
Administrative Agent (on behalf of the Lenders or the Required Lenders, as the case may be,
pursuant to Section 10.01 of the Credit Agreement) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.



     SECTION 5.4. Notices. All notices and other communications provided for hereunder
shall be in writing or by facsimile and addressed, delivered or transmitted to the appropriate
party at the address or facsimile number of such party (in the case of any Guarantor, in care of
the Company) specified in the Credit Agreement or at such other address or facsimile number as may
be designated by such party in a notice to the other party. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall
be deemed given when received; any such notice, if transmitted by facsimile, shall be deemed given
when the confirmation of transmission thereof is received by the transmitter.



     SECTION 5.5. Additional Guarantors. Upon the execution and delivery by any other
Person of a supplement in the form of Annex I hereto, such Person shall become a
“Guarantor” hereunder with the same force and effect as if it were originally a party to this
Guaranty and named as a “Guarantor” hereunder. The execution and delivery of such supplement shall
not require the consent of any other Guarantor hereunder, and the rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new
Guarantor as a party to this Guaranty.



     SECTION 5.6. Release of Guarantor. Upon the occurrence of the Termination Date, this
Guaranty and all obligations of each Guarantor hereunder shall terminate, without delivery of any
instrument or performance of any act by any party. In addition, at the request of the Company, and
at the sole expense of the Company, a Guarantor shall be released from its obligations hereunder in
the event that the Capital Securities of such Guarantor are Disposed of in a transaction permitted
by the Credit Agreement; provided that the Company shall have delivered to the
Administrative Agent, at least three Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Guarantor and a certification by the Company
stating that such transaction is in compliance with the Loan Documents.



     SECTION 5.7. No Waiver; Remedies. In addition to, and not in limitation of,
Sections 2.3 and 2.5, no failure on the part of any Secured Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by Law.



     SECTION 5.8. Section Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this Guaranty.



8









 





     SECTION 5.9. Severability. If any provision of this Guaranty or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Guaranty and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     SECTION 5.10. Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




     (b) SUBMISSION TO JURISDICTION. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS 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 GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE 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 BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.



9









 






     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. EACH
FOREIGN OBLIGOR HEREBY IRREVOCABLY APPOINTS THE COMPANY, AS ITS AUTHORIZED AGENT TO RECEIVE
ON ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT AND CONSENTS
TO THE SERVICE OF PROCESS OUT OF ANY SUCH COURTS BY MAILING A COPY THEREOF, BY REGISTERED
MAIL, POSTAGE PREPAID, TO SUCH AGENT AT SUCH ADDRESS, AND AGREES THAT SUCH SERVICE, TO THE
FULLEST EXTENT PERMITTED BY LAW: (I) SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF
PROCESS UPON IT IN ANY SUCH SUIT, ACTION OR PROCEEDING; AND (II) SHALL BE TAKEN AND HELD TO
BE VALID PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT. IF ANY AGENT APPOINTED BY ANY
PERSON PARTY HERETO REFUSES TO ACCEPT SERVICE, SUCH PERSON HEREBY AGREES THAT SERVICE UPON
IT BY MAIL SHALL UPON RECEIPT CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN CONTAINED SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF ANY OTHER PERSON PARTY HERETO TO BRING PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS
OF ANY OTHER JURISDICTION.



     SECTION 5.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 GUARANTY OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 GUARANTY AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     SECTION 5.12. California Judicial Reference. If any action or proceeding is filed in
a court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is
hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section
638 to a referee (who shall be a single active or retired judge) to hear and determine all of the
issues in such action or proceeding (whether of fact or of Law) and to report a statement of
decision, provided that at the option of any party to such proceeding, any such issues
pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section
1281.8 shall be heard and determined by the court; and (b) without limiting the generality of
Section 10.04 of the Credit Agreement, the Guarantors, jointly and severally, shall



10









 







be solely responsible to pay all fees and expenses of any referee appointed in such action or
proceeding.



     SECTION 5.13. Counterparts. This Guaranty may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.



     SECTION 5.14. Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency
into another currency, the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is given. The obligation of
each Guarantor in respect of any such sum due from it to the Administrative Agent or the Lenders
hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which such sum is denominated in accordance with
the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only
to the extent that on the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from any Guarantor in the Agreement Currency, such Guarantor agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or
the Person to whom such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to such Guarantor (or
to any other Person who may be entitled thereto under applicable law).



     SECTION 5.15. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



11









 





     IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered
by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	ASYST SHINKO TAIWAN, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	ASYST SHINKO AMERICA, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




12









 





	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:


KEYBANK NATIONAL ASSOCIATION,

  as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




13









 





ANNEX I to

the ASI Subsidiary Guaranty




     THIS SUPPLEMENT, dated as of ___, 20___(this “Supplement”), is to the ASI
Subsidiary Guaranty, dated as of July ___, 2007 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the “Guaranty”), among the Guarantors (such
capitalized term, and other terms used in this Supplement, to have the meanings set forth in
Article I of the Guaranty) from time to time party thereto, in favor of KEYBANK NATIONAL
ASSOCIATION, as administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



W I T N
E S S E T H :




     WHEREAS, pursuant to the provisions of Section 5.5 of the Guaranty, each of the undersigned is
becoming a Guarantor under the Guaranty; and



     WHEREAS, each of the undersigned desires to become a “Guarantor” under the Guaranty in order
to induce the Secured Parties to continue to extend Credit Extensions under the Credit Agreement;



     NOW, THEREFORE, in consideration of the premises, and for other consideration (the receipt and
sufficiency of which is hereby acknowledged), each of the undersigned agrees, for the benefit of
each Secured Party, as follows.



     SECTION 1. Party to Guaranty, etc. In accordance with the terms of the Guaranty, by
its signature below, each of the undersigned hereby irrevocably agrees to become a Guarantor under
the Guaranty with the same force and effect as if it were an original signatory thereto and each of
the undersigned hereby (a) agrees to be bound by and comply with all of the terms and provisions of
the Guaranty applicable to it as a Guarantor and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true and correct as of the
date hereof. In furtherance of the foregoing, each reference to a “Guarantor” and/or “Guarantors”
in the Guaranty shall be deemed to include each of the undersigned.



     SECTION 2. Waiver, Agreements, etc. Each of the undersigned hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to any of the Secured
Obligations, this Supplement and the Guaranty and any requirement that any Secured Party protect,
secure, perfect or insure any Lien, or any property subject thereto, or exhaust any right or take
any action against any Loan Party or any other Person (including any other Guarantor) or entity or
any Collateral securing the Secured Obligations, as the case may be.



     SECTION 3. Representations. Each of the undersigned hereby represents and warrants
that this Supplement has been duly authorized, executed and delivered by it and that this
Supplement and the Guaranty constitute the legal, valid and binding obligation of each of the
undersigned, enforceable against it in accordance with its terms.



     SECTION 4. Full Force of Guaranty. Except as expressly supplemented hereby, the
Guaranty shall remain in full force and effect in accordance with its terms.



1









 





     SECTION 5. Severability. If any provision of this Supplement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Supplement and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



     SECTION 6. Indemnity; Fees and Expenses, etc. Without limiting the provisions of any
other Loan Document, each of the undersigned agrees to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses incurred in connection with this Supplement, including reasonable
attorney’s fees and expenses of the Administrative Agent’s counsel.



     SECTION 7. Governing Law, Entire Agreement, etc. THIS SUPPLEMENT WILL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.



     SECTION 8. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Supplement, the Guaranty or any other Loan Document, (a) the
court shall, and is hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear
and determine all of the issues in such action or proceeding (whether of fact or of Law) and to
report a statement of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Guarantors (including the undersigned), jointly and
severally, shall be solely responsible to pay all fees and expenses of any referee appointed in
such action or proceeding.



     SECTION 9. Counterparts. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Guaranty by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Guaranty.



     SECTION 10. ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



2









 





     IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be duly executed and
delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:


KEYBANK NATIONAL ASSOCIATION

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 




1









 





EXHIBIT
G-1




US PLEDGE AND SECURITY AGREEMENT




  This US PLEDGE AND SECURITY AGREEMENT, dated as of July 27, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, this “Security Agreement”),
is made by ASYST TECHNOLOGIES, INC., a California corporation (the “Company”), ASYST JAPAN,
INC., a Japanese corporation (“AJI”), ASYST SHINKO, INC., a Japanese corporation
(“ASI”) and each Subsidiary Guarantor (terms used in the preamble and the recitals have the
definitions set forth in or incorporated by reference in Article I) from time to time a
party to this Security Agreement (each of the foregoing individually a “Grantor” and
collectively, the “Grantors”), in favor of KeyBank National Association as the
administrative agent (together with its successor(s) thereto in such capacity, the
“Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H :




     WHEREAS, pursuant to a Credit Agreement, dated as of July 27, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Company, AJI, ASI and certain other Subsidiaries of the Company party thereto from time
to time (each a “Designated Borrower” and, collectively with the Company AJI and ASI, the
“Borrowers”), the Lenders and the Administrative Agent, the Lenders and the L/C Issuer have
extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, as a condition precedent to the making of the Credit Extensions under the Credit
Agreement, each Grantor is required to execute and deliver this Security Agreement;



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Grantor agrees, for the benefit of each Secured Party, as follows:



ARTICLE I

DEFINITIONS




     SECTION 1.1. Certain Terms. The following terms (whether or not underscored) when
used in this Security Agreement, including its preamble and recitals, shall have the following
meanings (such definitions to be equally applicable to the singular and plural forms thereof):



     “Administrative Agent” is defined in the preamble.



     “Borrowers” is defined in the first recital.



     “Collateral” is defined in Section 2.1.



     “Collateral Account” is defined in clause (b) of Section 4.3.



 









 





     “Computer Hardware and Software Collateral” means all of the Grantors’ right, title
and interest throughout the world in and to:




     (a) all computer and other electronic data processing hardware, integrated computer
systems, central processing units, memory units, display terminals, printers, features,
computer elements, card readers, tape drives, hard and soft disk drives, cables, electrical
supply hardware, generators, power equalizers, accessories and all peripheral devices and
other related computer hardware, including all operating system software, utilities and
application programs in whatsoever form;




     (b) all software programs (including both source code, object code and all related
applications and data files), designed for use on the computers and electronic data
processing hardware described in clause (a) above;




     (c) all firmware associated therewith;




     (d) all documentation (including flow charts, logic diagrams, manuals, guides,
specifications, training materials, charts and pseudo codes) with respect to such hardware,
software and firmware described in the preceding clauses (a) through (c);
and




     (e) all rights with respect to all of the foregoing, including copyrights, licenses,
options, warranties, service contracts, program services, test rights, maintenance rights,
support rights, improvement rights, renewal rights and indemnifications and any
substitutions, replacements, improvements, error corrections, updates, additions or model
conversions of any of the foregoing.



     “Control Agreement” means an authenticated record in form and substance reasonably
satisfactory to the Administrative Agent, that provides for the Administrative Agent to have
“control” (as defined in the UCC) over certain Collateral.



     “Copyright Collateral” means all of the Grantors’ right, title and interest throughout
the world in and to:




     (a) all copyrights, registered or unregistered and whether published or unpublished,
now or hereafter in force including copyrights registered in the United States Copyright
Office and corresponding offices in other countries of the world (except Japan and Taiwan),
and registrations and recordings thereof and all applications for registration thereof,
whether pending or in preparation and all extensions and renewals of the foregoing
(“Copyrights”), including the Copyrights which are the subject of a registration or
application referred to in Item A of Schedule V;




     (b) all express or implied Copyright licenses and other agreements for the grant by or
to such Grantor of any right to use any items of the type referred to in clause (a) above
(each a “Copyright License”), including each Copyright License referred to in
Item B of Schedule V;



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     (c) the right to sue for past, present and future infringements of any of the
Copyrights owned by such Grantor, and for breach or enforcement of any Copyright License;
and




     (d) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits).



     “Credit Agreement” is defined in the first recital.



     “Distributions” means all dividends paid on Equity Interests, liquidating dividends
paid on Equity Interests, shares (or other designations) of Equity Interests resulting from (or in
connection with the exercise of) stock splits, reclassifications, warrants, options, non-cash
dividends, mergers, consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Equity Interests constituting Collateral.



     “Filing Statements” is defined in clause (b) of Section 3.7.



     “General Intangibles” means all “general intangibles” and all “payment intangibles”,
each as defined in the UCC, and shall include all interest rate or currency protection or hedging
arrangements, all tax refunds, all licenses, permits, concessions and authorizations and all
Intellectual Property Collateral (in each case, regardless of whether characterized as general
intangibles under the UCC).



     “Grantor” and “Grantors” are defined in the preamble.



     “Intellectual Property” means Trademarks, Patents, Copyrights, Trade Secrets and all
other similar types of intellectual property under any Law, statutory provision or common Law
doctrine in the United States or anywhere else in the world.



     “Intellectual Property Collateral” means, collectively, the Computer Hardware and
Software Collateral, the Copyright Collateral, the Patent Collateral, the Trademark Collateral and
the Trade Secrets Collateral.



     “Owned Intellectual Property Collateral” means all Intellectual Property that is
necessary for or used in the business of each Grantor that is (a) not licensed to a Grantor
pursuant to a Trademark License, Patent License or Copyright License set forth in Schedules
III, IV or V; and (b) not in the public domain.



     “Patent Collateral” means all of the Grantors’ right, title and interest throughout
the world in and to:




     (a) inventions and discoveries, whether patentable or not, all letters patent and
applications for letters patent throughout the world (except Japan and Taiwan), including
all patent applications in preparation for filing, including all reissues, divisions,
continuations, continuations-in-part, extensions, renewals and reexaminations of any of the
foregoing (“Patents”), including each Patent and Patent application referred to in
Item A of Schedule III;



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     (b) all Patent licenses, and other agreements for the grant by or to such Grantor of
any right to use any items of the type referred to in clause (a) above (each a
“Patent License”), including each Patent License referred to in Item B of
Schedule III;




     (c) the right to sue third parties for past, present and future infringements of any
Patent or Patent application, and for breach or enforcement of any Patent License; and




     (d) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits).



     “Permitted Liens” means all Liens permitted by Section 7.01 of the Credit Agreement or
any other Loan Document.



     “Security Agreement” is defined in the preamble.



     “Specified Default” means (a) an Event of Default or (b) a Default under clause (f) or
(g) of Section 8.01 of the Credit Agreement.



     “Termination Date” means the date on which all Obligations have been paid in full in
cash, all Letters of Credit have been terminated or have expired (or have been Cash
Collateralized), all Secured Hedge Agreements have been terminated or have otherwise been provided
for on terms reasonably satisfactory to the parties, and all Commitments shall have been
terminated.



     “Trademark Collateral” means all of the Grantors’ right, title and interest throughout
the world in and to:




     (a) (i) all trademarks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, service marks, certification marks, collective
marks, logos and other source or business identifiers, and all goodwill of the business
associated therewith, now existing or hereafter adopted or acquired, whether currently in
use or not, all registrations and recordings thereof and all applications in connection
therewith, whether pending or in preparation for filing, including registrations, recordings
and applications in the United States Patent and Trademark Office and corresponding offices
in other countries of the world (except Japan and Taiwan), and all common-Law rights
relating to the foregoing, and (ii) the right to obtain all reissues, extensions or renewals
of the foregoing (collectively referred to as “Trademarks”), including those
Trademarks referred to in Item A of Schedule IV;




     (b) all Trademark licenses and other agreements for the grant by or to such Grantor of
any right to use any Trademark (each a “Trademark License”), including each
Trademark License referred to in Item B of Schedule IV; and




     (c) all of the goodwill of the business connected with the use of, and symbolized by
the Trademarks described in clause (a) and, to the extent applicable, clause
(b);



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     (d) the right to sue third parties for past, present and future infringements or
dilution of the Trademarks described in clause (a) and, to the extent applicable,
clause (b) or for any injury to the goodwill associated with the use of any such
Trademark or for breach or enforcement of any Trademark License; and




     (e) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits).



     “Trade Secrets Collateral” means all of the Grantors’ right, title and interest
throughout the world in and to (a) all common Law and statutory trade secrets and all other
confidential, proprietary or useful information and all know-how (collectively referred to as
“Trade Secrets”) obtained by or used in or contemplated at any time for use in the business
of a Grantor, whether or not such Trade Secret has been reduced to a writing or other tangible
form, including all documents and things embodying, incorporating or referring in any way to such
Trade Secret, (b) all Trade Secret licenses and other agreements for the grant by or to such
Grantor of any right to use any Trade Secret (each a “Trade Secret License”) including the
right to sue for and to enjoin and to collect damages for the actual or threatened misappropriation
of any Trade Secret and for the breach or enforcement of any such Trade Secret License, and (d) all
proceeds of, and rights associated with, the foregoing (including Proceeds, licenses, royalties,
income, payments, claims, damages and proceeds of infringement suits).



     SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Security Agreement, including its preamble and
recitals, have the meanings provided in the Credit Agreement.



     SECTION 1.3. UCC Definitions. When used herein the terms Account, Certificated
Securities, Chattel Paper, Commercial Tort Claim, Commodity Account, Commodity Contract, Deposit
Account, Document, Electronic Chattel Paper, Equipment, Goods, Instrument, Inventory, Investment
Property, Letter-of-Credit Rights, Proceeds, Promissory Notes, Securities Account, Security
Entitlement, Supporting Obligations and Uncertificated Securities have the meaning provided in
Article 8 or Article 9, as applicable, of the UCC. Letters of Credit has the meaning provided in
Section 5-102 of the UCC.



ARTICLE II

SECURITY INTEREST




     SECTION 2.1. Grant of Security Interest. Each Grantor hereby grants to the
Administrative Agent, for its benefit and the ratable benefit of each other Secured Party, a
continuing security interest in all of such Grantor’s right, title and interest in the following
property, whether now or hereafter existing, owned or acquired by such Grantor, and wherever
located, (collectively, the “Collateral”):




     (a) Accounts;




     (b) Chattel Paper;



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     (c) Commercial Tort Claims listed on Item I of Schedule II (as such
schedule may be amended or supplemented from time to time);




     (d) Deposit Accounts;




     (e) Documents;




     (f) General Intangibles;




     (g) Goods;




     (h) Instruments;




     (i) Investment Property;




     (j) Letter-of-Credit Rights and Letters of Credit;




     (k) Supporting Obligations;




     (l) all books, records, writings, databases, information and other property relating
to, used or useful in connection with, evidencing, embodying, incorporating or referring to,
any of the foregoing in this Section;




     (m) all Proceeds of the foregoing and, to the extent not otherwise included,
(A) all payments under insurance (whether or not the Administrative Agent is the loss
payee thereof) and (B) all tort claims; and




     (n) all other property and rights of every kind and description and interests therein.



     Notwithstanding the foregoing, the term “Collateral” shall not include, and the grant of a
security interest as provided hereunder shall not extend to:




     (i) such Grantor’s real property interests (other than fixtures);




     (ii) any General Intangibles or other rights arising under any contracts,
instruments, licenses or other documents (including the Acquisition Agreement and
Related Documents) to the extent the grant of a security interest would (A)
constitute a violation of a valid and enforceable restriction in favor of a third
party on such grant, unless and until any required consents shall have been obtained
(it being agreed that no Grantor shall be required to obtain such consent with
respect to the Acquisition Agreement and Related Documents), or (B) give any other
party to such contract, instrument, license or other document a valid and
enforceable right to terminate its obligations thereunder;




     (iii) any asset, the granting of a security interest in which would be void or
illegal under any applicable governmental Law, rule or regulation, or pursuant
thereto would result in, or permit the termination of, such asset;



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     (iv) any rights or interests of any Grantor in and to the Japanese Collateral,
the Taiwanese Collateral or any Other Foreign Collateral in each case not located in
the US to the extent that any such Collateral is subject to a security interest in
favor of a Secured Party under any Collateral Document (other than US Collateral
Documents); or




     (v) any asset subject to a Permitted Lien (other than Liens in favor of the
Administrative Agent) to the extent that the grant of other Liens on such asset (A)
would result in a breach or violation of, or constitute a default under, the
agreement or instrument governing such Permitted Lien, (B) would result in the loss
of use of such asset or (C) would permit the holder of such Permitted Lien to
terminate the Grantor’s use of such asset.



     SECTION 2.2. Security for Obligations. This Security Agreement and the Collateral in
which the Administrative Agent for the benefit of the Secured Parties is granted a security
interest hereunder by the Grantors secure the payment and performance of (a) with respect to each
of the Company and each Grantor that is a US Subsidiary Guarantor, all of the Obligations;
provided that Investment Property consisting of Equity Interests of any Foreign Subsidiary
of such Grantor in excess of 65% of the total combined voting power of all Equity Interests of such
Foreign Subsidiary shall not secure the Obligations of any US Loan Party, except that such 65%
limitation shall not apply to a Foreign Subsidiary that (x) is treated as a partnership under the
Code or (y) is not treated as an entity that is separate from (A) such Grantor; (B) any Person that
is treated as a partnership under the Code or (C) any “United States person” (as defined in Section
7701(a)(30) of the Code) and (b) with respect to each Grantor, all of the Obligations of the
Foreign Obligors.



     SECTION 2.3. Grantors Remain Liable. Anything herein to the contrary notwithstanding:




     (a) the Grantors will remain liable under the contracts and agreements included in the
Collateral to the extent set forth therein, and will perform all of their duties and
obligations under such contracts and agreements to the same extent as if this Security
Agreement had not been executed;




     (b) the exercise by the Administrative Agent of any of its rights hereunder will not
release any Grantor from any of its duties or obligations under any such contracts or
agreements included in the Collateral; and




     (c) no Secured Party will have any obligation or liability under any contracts or
agreements included in the Collateral by reason of this Security Agreement, nor will any
Secured Party be obligated to perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim for payment assigned
hereunder.



     SECTION 2.4. Distributions on Pledged Shares. In the event that any Distribution with
respect to any Equity Interests pledged hereunder is permitted to be paid (in accordance with
Section 7.06 of the Credit Agreement), such Distribution or payment may be paid directly to the



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applicable Grantor. If any Distribution is made in contravention of Section 7.06 of the
Credit Agreement, such Grantor shall hold the same segregated and in trust for the Administrative
Agent until paid to the Administrative Agent in accordance with Section 4.1.5.



     SECTION 2.5. Security Interest Absolute, etc. This Security Agreement shall in all
respects be a continuing, absolute, unconditional and irrevocable grant of security interest, and
shall remain in full force and effect until the Termination Date. All rights of the Secured
Parties and the security interests granted to the Administrative Agent (for its benefit and the
ratable benefit of each other Secured Party) hereunder, and all obligations of the Grantors
hereunder, shall, in each case, be absolute, unconditional and irrevocable irrespective of:




     (a) any lack of validity, legality or enforceability of any Loan Document;




     (b) the failure of any Secured Party (i) to assert any claim or demand or to enforce
any right or remedy against any Loan Party or any other Person (including any other Grantor)
under the provisions of any Loan Document or otherwise, or (ii) to exercise any right or
remedy against any other guarantor (including any other Grantor) of, or collateral securing,
any Obligations;




     (c) any change in the time, manner or place of payment of, or in any other term of, all
or any part of the Obligations, or any other extension, compromise or renewal of any
Obligations;




     (d) any reduction, limitation, impairment or termination of any Obligations for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and each Grantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Obligations or otherwise;




     (e) any amendment to, rescission, waiver, or other modification of, or any consent to
or departure from, any of the terms of any Loan Document;




     (f) any addition, exchange or release of any Collateral or of any Person that is (or
will become) a Grantor (including the Grantors hereunder) of the Obligations, or any
surrender or non-perfection of any collateral, or any amendment to or waiver or release or
addition to, or consent to or departure from, any other guaranty held by any Secured Party
securing any of the Obligations; or




     (g) any other circumstance which might otherwise constitute a defense available to, or
a legal or equitable discharge of, any Loan Party, any surety or any guarantor.



     SECTION 2.6. Postponement of Subrogation. Each Grantor agrees that it will not
exercise any rights against another Grantor which it may acquire by way of rights of subrogation
under any Loan Document to which it is a party. No Grantor shall seek or be entitled to seek any
contribution or reimbursement from any Loan Party, in respect of any payment made under any



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Loan Document or otherwise, until following the Termination Date. Any amount paid to such
Grantor on account of any such subrogation rights prior to the Termination Date shall be held in
trust for the benefit of the Secured Parties and shall immediately be paid and turned over to the
Administrative Agent for the benefit of the Secured Parties in the exact form received by such
Grantor (duly endorsed in favor of the Administrative Agent, if required), to be credited and
applied against the Obligations, whether matured or unmatured, in accordance with Section
6.1; provided that if such Grantor has made payment to the Secured Parties of all or
any part of the Obligations and the Termination Date has occurred, then at such Grantor’s request,
the Administrative Agent (on behalf of the Secured Parties) will, at the expense of such Grantor,
execute and deliver to such Grantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to such Grantor of an
interest in the Obligations resulting from such payment. In furtherance of the foregoing, at all
times prior to the Termination Date, such Grantor shall refrain from taking any action or
commencing any proceeding against any Loan Party (or its successors or assigns, whether in
connection with a bankruptcy proceeding or otherwise) to recover any amounts in respect of payments
made under this Security Agreement to any Secured Party.



ARTICLE III

REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into the Credit Agreement and make Credit
Extensions thereunder, and to induce the Secured Parties to enter into Swap Contracts, the Grantors
represent and warrant to each Secured Party as set forth below.



     SECTION 3.1. As to Equity Interests of the Subsidiaries, Investment Property.




     (a) With respect to any direct Subsidiary of any Grantor that is




     (i) a corporation, business trust, joint stock company or similar Person, all
Equity Interests issued by such Subsidiary are duly authorized and validly issued,
fully paid and non-assessable (or equivalent thereof to the extent applicable in the
jurisdiction in which Equity Interests are issued), and represented by a
certificate; and




     (ii) a limited liability company organized under the laws of any State of the
US, no Equity Interests issued by such Subsidiary fails to expressly provides that
such Equity Interests is a security governed by Article 8 of the UCC;




     (iii) a partnership or limited liability company, no Equity Interests issued by
such Subsidiary (A) is dealt in or traded on securities exchanges or in securities
markets, or (B) is held in a Securities Account, except, with respect to this
clause (a)(ii), Equity Interests (x) for which the Administrative Agent is
the registered owner or (y) with respect to which the issuer has agreed in an
authenticated record with such Grantor and the Administrative Agent to comply with
any instructions of the Administrative Agent without the consent of such Grantor.



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     (b) Subject to Section 6.25 of the Credit Agreement, each Grantor has delivered all
Certificated Securities constituting Collateral held by such Grantor on the Closing Date to
the Administrative Agent, together with duly executed undated blank stock powers, or other
equivalent instruments of transfer acceptable to the Administrative Agent.




     (c) With respect to Uncertificated Securities constituting Collateral owned by any
Grantor, such Grantor has caused the issuer thereof either to (i) register the
Administrative Agent as the registered owner of such security or (ii) agree in an
authenticated record with such Grantor and the Administrative Agent that such issuer will
comply with instructions with respect to such security originated by the Administrative
Agent without further consent of such Grantor.




     (d) The percentage of the issued and outstanding Equity Interests of each Subsidiary
pledged by each Grantor hereunder is as set forth on Schedule I.



     SECTION 3.2. Grantor Name, Location, etc.




     (a) The jurisdiction in which each Grantor is located for purposes of Sections 9-301
and 9-307 of the UCC is set forth in Item A of Schedule II.




     (b) Each location a secured party would have filed a UCC financing statement in the
five years prior to the date hereof to perfect a security interest in Equipment, Inventory
and General Intangibles owned by such Grantor is set forth in Item B of Schedule
II.




     (c) The Grantors do not have any trade names other than those set forth in Item
C of Schedule II hereto.




     (d) During the four months preceding the date hereof, no Grantor has been known by any
legal name different from the one set forth on the signature page hereto, nor has such
Grantor been the subject of any merger or other corporate reorganization, except as set
forth in Item D of Schedule II hereto.




     (e) Each Grantor’s federal taxpayer identification number is (and, during the four
months preceding the date hereof, such Grantor has not had a federal taxpayer identification
number different from that) set forth in Item E of Schedule II hereto.




     (f) No Grantor is a party to any federal, state or local government contract except as
set forth in Item F of Schedule II hereto.




     (g) [Grantor maintains the Deposit Accounts, Securities Accounts and Commodity Accounts
(excluding Excluded Accounts) with the Person, in each case, as set forth on Item G
of Schedule II.]




     (h) No Grantor is the beneficiary of any Letters of Credit, except as set forth on
Item H of Schedule II.



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     (i) No Grantor has Commercial Tort Claims (x) in which a suit has been filed by such
Grantor and (y) where the amount of damages reasonably expected to be claimed exceeds
$1,000,000, except as set forth on Item I of Schedule II.




     (j) The name set forth on the signature page attached hereto is the true and correct
legal name (as defined in the UCC) of each Grantor.




     (k) With respect to Letters of Credit with an aggregate face amount of $500,000 or
more, each Grantor has, to the extent reasonably requested by Administrative Agent, obtained
a legal, valid and enforceable consent of each issuer of any such Letter of Credit to the
assignment of the Proceeds of such Letter of Credit to the Administrative Agent and no
Grantor has consented to, and is otherwise aware of, any Person (other than the
Administrative Agent pursuant hereto) having control (within the meaning of Section 9-104 of
the UCC) over, or any other interest in any of such Grantor’s rights in respect thereof.



     SECTION 3.3. Ownership, No Liens, etc. Each Grantor has rights in or the power to
transfer the Collateral, and each Grantor owns its Collateral free and clear of any Lien, except
for any security interest in Collateral (other than the Equity Interests of each Subsidiary pledged
hereunder) that is a Permitted Lien. No effective financing statement or other filing similar in
effect covering all or any part of the Collateral is on file in any recording office, except those
filed in favor of the Administrative Agent relating to this Security Agreement, Permitted Liens or
as to which a duly authorized termination statement relating to such financing statement or other
instrument has been delivered to the Administrative Agent on the Closing Date.



     SECTION 3.4. Possession of Inventory, Control; etc.




     (a) Each Grantor has, and agrees that it will maintain, exclusive possession of its
Documents, Instruments, Promissory Notes, Goods, Equipment and Inventory, other than (i)
Equipment and Inventory in transit in the ordinary course of business, (ii) Equipment and
Inventory that is in the possession or control of a warehouseman, bailee agent or other
Person (other than a Person controlled by or under common control with the) that has been
notified of the security interest created in favor of the Secured Parties pursuant to this
Security Agreement, and has authenticated a record acknowledging that it holds possession of
such Collateral for the Secured Parties’ benefit and waives any Lien held by it against such
Collateral, and (iii) Instruments or Promissory Notes that have been delivered to the
Administrative Agent pursuant to Section 3.5. In the case of Equipment or Inventory
described in clause (ii) above, to the best of the applicable Grantor’s knowledge,
no lessor or warehouseman of any premises or warehouse upon or in which such Equipment or
Inventory is located has (i) issued any warehouse receipt or other receipt in the nature of
a warehouse receipt in respect of any such Equipment or Inventory, (ii) issued any Document
for any such Equipment or Inventory, (iii) received notification of any Secured Party’s
interest (other than the security interest granted hereunder) in any such Equipment or
Inventory or (iv) any Lien on any such Equipment or Inventory.



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     (b) Each Grantor is the sole entitlement holder of its Accounts and no other Person
(other than the Administrative Agent pursuant to this Security Agreement or any other Person
with respect to Permitted Liens) has control or possession of, or any other interest in, any
of its Accounts or any other securities or property credited thereto.



     SECTION 3.5. Negotiable Documents, Instruments and Chattel Paper. Each Grantor has
delivered to the Administrative Agent possession of all originals of all Documents, Instruments,
Promissory Notes, and tangible Chattel Paper constituting Collateral and owned or held by such
Grantor on the Closing Date.



     SECTION 3.6. Intellectual Property Collateral.




     (a) In respect of the Intellectual Property Collateral:




     (i) set forth in Item A of Schedule III hereto is a complete
and accurate list of all issued and applied-for Patents owned by each Grantor,
including those that have been issued by or are on file with the United States
Patent and Trademark Office or corresponding offices in other countries of the world
(except Japan and Taiwan), and set forth in Item B of Schedule III
hereto is a complete and accurate list of all Patent Licenses;




     (ii) set forth in Item A of Schedule IV hereto is a complete
and accurate list all registered and applied-for Trademarks owned by each Grantor,
including those that are registered, or for which an application for registration
has been made, with the United States Patent and Trademark Office or corresponding
offices in other countries of the world (except Japan and Taiwan), and set forth in
Item B of Schedule IV hereto is a complete and accurate list all
Trademark Licenses; and




     (iii) set forth in Item A of Schedule V hereto is a complete
and accurate list of all registered and applied-for Copyrights owned by each
Grantor, including those that are registered, or for which an application for
registration has been made, with the United States Copyright Office or corresponding
offices in other countries of the world (except Japan and Taiwan), and set forth in
Item B of Schedule V hereto is a complete and accurate list of all
Copyright Licenses, including an indication of which of those Copyright Licenses are
exclusive licenses granted to such Grantor in respect of any Copyright that is
registered with the United States Copyright Office.




     (b) Except as disclosed on Schedules III through V, in respect of each
Grantor:




     (i) the Owned Intellectual Property Collateral is valid, subsisting, unexpired
and enforceable and has not been abandoned or adjudged invalid or unenforceable, in
whole or in part;




     (ii) such Grantor is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to the Owned Intellectual Property



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Collateral (except for the Permitted Liens), and such Grantor has not received
any written notice claiming or otherwise has knowledge that such Grantor is or may
be, in conflict with, infringing, misappropriating, diluting, misusing or otherwise
violating any of the rights of any third party or that challenges the ownership,
use, protectability, registerability, validity, enforceability of any Owned
Intellectual Property Collateral or, to such Grantor’s knowledge, any other
Intellectual Property Collateral and, to such Grantor’s knowledge, there is no valid
basis for any such claims;




     (iii) such Grantor has made all necessary filings and recordations to protect
its interest in any Owned Intellectual Property Collateral that is material to the
business of such Grantor, including recordations of all of its interests in the
Patent Collateral, the Trademark Collateral and the Copyright Collateral in the
United States Patent and Trademark Office, the United States Copyright Office and
corresponding offices in other countries of the world, as appropriate, and has used
proper statutory notice, as applicable, in connection with its use of any Patent,
Trademark or Copyright;




     (iv) such Grantor has taken all reasonable steps to safeguard its Trade Secrets
and to its knowledge (A) none of the Trade Secrets of such Grantor has been used,
divulged, disclosed or appropriated for the benefit of any other Person other than
such Grantor; (B) no employee, independent contractor or agent of such Grantor has
misappropriated any Trade Secrets of any other Person in the course of the
performance of his or her duties as an employee, independent contractor or agent of
such Grantor; and (C) no employee, independent contractor or agent of such Grantor
is in default or breach of any term of any employment agreement, non-disclosure
agreement, assignment of inventions agreement or similar agreement or contract
relating in any way to the protection, ownership, development, use or transfer of
such Grantor’s material Intellectual Property Collateral;




     (v) no action by such Grantor is currently pending or threatened in writing
which asserts that any third party is infringing, misappropriating, diluting,
misusing or voiding any Owned Intellectual Property Collateral and, to such
Grantor’s knowledge, no third party is infringing upon, misappropriating, diluting,
misusing or voiding any Intellectual Property owned or used by such Grantor in any
material respect, or any of its respective licensees;




     (vi) no settlement or consents, covenants not to sue, nonassertion assurances,
or releases have been entered into by such Grantor or to which such Grantor is bound
that adversely affects its rights to own or use any Intellectual Property
Collateral;




     (vii) except for the Permitted Liens, such Grantor has not made a previous
assignment, sale, transfer or agreement constituting a present or future assignment,
sale or transfer of any Intellectual Property Collateral for purposes of



13









 







granting a security interest or as collateral that has not been terminated or
released;




     (viii) such Grantor has executed and delivered to the Administrative Agent,
Intellectual Property Collateral security agreements for all Copyrights, Patents and
Trademarks owned by such Grantor, including all Copyrights, Patents and Trademarks
on Schedules III, IV or V (as such schedules may be amended
or supplemented from time to time);




     (ix) the consummation of the transactions contemplated by the Credit Agreement
and this Security Agreement will not result in the termination or material
impairment of any of the Intellectual Property Collateral;




     (x) all employees, independent contractors and agents who have contributed to
the creation or development of any Owned Intellectual Property Collateral have been
a party to an enforceable “work for hire” and assignment agreement with such Grantor
in accordance with applicable Laws, according and granting exclusive ownership of
such Owned Intellectual Property Collateral to such Grantor; and




     (xi) such Grantor owns directly or is entitled to use by license or otherwise,
all Intellectual Property used in, necessary for or of importance to the conduct of
such Grantor’s business.



     SECTION 3.7. Validity, etc.




     (a) This Security Agreement creates a valid security interest in the Collateral
securing the payment of the Obligations as set forth in Section 2.2.




     (b) Each Grantor has filed or caused to be filed all UCC-1 financing statements in the
filing office for each Grantor’s jurisdiction of organization listed in
Item A of Schedule II (collectively, the “Filing Statements”)
(or has authenticated and delivered to the Administrative Agent the Filing Statements
suitable for filing in such offices) and has taken all other:




     (i) actions necessary to obtain control of the Collateral as provided in
Sections 9-104 (other than Excluded Accounts), 9-105, 9-106 (subject to Section 6.25
of the Credit Agreement) and 9-107 of the UCC; and




     (ii) actions necessary to perfect the Administrative Agent’s security interest
with respect to any Collateral evidenced by a certificate of ownership.




     (c) Upon the filing of the Filing Statements with the appropriate agencies therefor the
security interests created under this Security Agreement shall constitute a perfected
security interest in the Collateral described on such Filing Statements in favor of the
Administrative Agent on behalf of the Secured Parties to the extent that a security interest
therein may be perfected by filing pursuant to the relevant UCC, prior to all other Liens,
except for Permitted Liens (in which case such security interest shall be second in



14









 







priority of right only to the Permitted Liens until the obligations secured by such
Permitted Liens have been satisfied).



     SECTION 3.8. Authorization, Approval, etc. Except as have been obtained or made and
are in full force and effect, no authorization, approval or other action by, and no notice to or
filing with, any Governmental Authority or any other third party is required either




     (a) for the grant by the Grantors of the security interest granted hereby or for the
execution, delivery and performance of this Security Agreement by the Grantors;




     (b) for the perfection or maintenance of the security interests hereunder including the
first priority (subject to Permitted Liens (in which case such security interest shall be
second in priority of right only to the Permitted Liens until the obligations secured by
such Permitted Liens have been satisfied)) nature of such security interest (except with
respect to the Filing Statements or, with respect to Intellectual Property Collateral, the
recordation of any agreements with the United States Patent and Trademark Office or the
United States Copyright Office) or the exercise by the Administrative Agent of its rights
and remedies hereunder; or




     (c) for the exercise by the Administrative Agent of the voting or other rights provided
for in this Security Agreement, or, except (i) with respect to any securities issued by a
Subsidiary of the Grantors, as may be required in connection with a disposition of such
securities by Laws affecting the offering and sale of securities generally, the remedies in
respect of the Collateral pursuant to this Security Agreement and (ii) any “change of
control” or similar filings required by state licensing agencies.



     SECTION 3.9. Best Interests. It is in the best interests of each Grantor (other than
the Company) to execute this Security Agreement inasmuch as such Grantor will, as a result of being
a Subsidiary of the Company, derive substantial direct and indirect benefits from the Credit
Extensions made from time to time to the Borrowers by the Lenders and the L/C Issuer pursuant to
the Credit Agreement, and each Grantor agrees that the Secured Parties are relying on this
representation in agreeing to make Credit Extensions pursuant to the Credit Agreement to the
Borrowers.



ARTICLE IV

COVENANTS




     Except as expressly provided in the Credit Agreement, each Grantor covenants and agrees that,
until the Termination Date, such Grantor will perform, comply with and be bound by the obligations
set forth below.



     SECTION 4.1. As to Investment Property, etc.



     SECTION 4.1.1. Equity Interests of Subsidiaries. No Grantor will allow any of its
Subsidiaries:



15









 






     (a) that is a corporation, business trust, joint stock company or similar Person, to
issue Uncertificated Securities;




     (b) that is a limited liability company organized under the laws of any State of the
US, fails to expressly provides that such Equity Interests is a security governed by Article
8 of the UCC;




     (c) that is a partnership or limited liability company, to (i) issue Equity Interests
that are to be dealt in or traded on securities exchanges or in securities markets, or (ii)
place such Subsidiary’s Equity Interests in a Securities Account; and




     (d) to issue Equity Interests in addition to or in substitution for the Equity
Interests pledged hereunder, except to such Grantor (and such Equity Interests are
immediately pledged and delivered to the Administrative Agent pursuant to the terms of this
Security Agreement).



     SECTION 4.1.2. Investment Property (other than Certificated Securities).




     (a) With respect to any Deposit Accounts, Securities Accounts, Commodity Accounts,
Commodity Contracts or Security Entitlements constituting Investment Property (in each case
other than Excluded Accounts) owned or held by any Grantor, such Grantor will, cause the
intermediary maintaining such Investment Property to execute a Control Agreement relating to
such Investment Property pursuant to which such intermediary agrees to comply with the
Administrative Agent’s instructions with respect to such Investment Property without further
consent by such Grantor.




     (b) With respect to any Uncertificated Securities (other than Uncertificated Securities
credited to a Securities Account) constituting Investment Property owned or held by any
Grantor, such Grantor will cause the issuer of such securities to either (i) register the
Administrative Agent as the registered owner thereof on the books and records of the issuer
or (ii) execute a Control Agreement relating to such Investment Property pursuant to which
the issuer agrees to comply with the Administrative Agent’s instructions with respect to
such Uncertificated Securities without further consent by such Grantor.



     SECTION 4.1.3. Certificated Securities (Stock Powers). Subject to Section 6.25 of the
Credit Agreement, each Grantor agrees that all Certificated Securities that constitute Collateral
will be delivered to the Administrative Agent and that all such Certificated Securities will be
accompanied by duly executed undated blank stock powers, or other equivalent instruments of
transfer reasonably acceptable to the Administrative Agent.



     SECTION 4.1.4. Continuous Pledge. Each Grantor will (subject to the terms of the
Credit Agreement) deliver to the Administrative Agent and at all times keep pledged to the
Administrative Agent pursuant hereto, on a first-priority, perfected basis all Investment Property,
all Distributions with respect thereto, all Payment Intangibles to the extent they are evidenced by
a Document, Instrument, Promissory Note or Chattel Paper, and all interest and principal with
respect to such Payment Intangibles, and all Proceeds and rights from time to time received by or
distributable to such Grantor in respect of any of the foregoing Collateral. Each Grantor agrees



16









 







that it will, promptly following receipt thereof, deliver to the Administrative Agent
possession of all originals of negotiable Documents, Instruments, Promissory Notes and Chattel
Paper that it acquires following the Closing Date.



     SECTION 4.1.5. Voting Rights; Distributions, etc. Each Grantor agrees promptly upon
(x) receipt of notice of the occurrence of a Specified Default from the Administrative Agent and
(y) request therefor by the Administrative Agent, so long as such Specified Default shall continue,




     (a) to deliver (properly endorsed where required hereby or requested by the
Administrative Agent) to the Administrative Agent all Distributions with respect to
Investment Property, all interest, principal, other cash payments on Payment Intangibles,
and all Proceeds of the Collateral, in each case thereafter received by such Grantor, all of
which shall be held by the Administrative Agent as additional Collateral; and




     (b) with respect to Collateral consisting of general partner interests or limited
liability company interests,




     (i) to promptly modify its Organizational Documents to admit the Administrative
Agent as a general partner or member, as applicable,




     (ii) that the Administrative Agent may exercise (to the exclusion of such
Grantor) the voting power and all other incidental rights of ownership with respect
to any Investment Property constituting Collateral and such Grantor hereby grants
the Administrative Agent an irrevocable proxy, exercisable under such circumstances,
to vote such Investment Property; and




     (iii) to promptly deliver to the Administrative Agent such additional proxies
and other documents as may be necessary to allow the Administrative Agent to
exercise such voting power.


All dividends, Distributions, interest, principal, cash payments, Payment Intangibles and Proceeds
that may at any time and from time to time be held by such Grantor, but which such Grantor is then
obligated to deliver to the Administrative Agent, shall, until delivery to the Administrative
Agent, be held by such Grantor separate and apart from its other property in trust for the
Administrative Agent. The Administrative Agent agrees that unless a Specified Default shall have
occurred and be continuing, such Grantor will have the exclusive voting power with respect to any
Investment Property constituting Collateral and the Administrative Agent will, upon the written
request of such Grantor, promptly deliver such proxies and other documents, if any, as shall be
reasonably requested by such Grantor which are necessary to allow such Grantor to exercise that
voting power; provided that no vote shall be cast, or consent, waiver, or ratification
given, or action taken by such Grantor that would materially impair any such Collateral or be
inconsistent with or violate any provision of any Loan Document.




     SECTION 4.2. Change of Name, etc. No Grantor will change its name or place of
incorporation or organization or federal taxpayer identification number except upon 30 days’ prior
written notice to the Administrative Agent.



17









 





     SECTION 4.3. As to Accounts.




     (a) Each Grantor shall have the right to collect all Accounts so long as no Specified
Default shall have occurred and be continuing.




     (b) Upon the occurrence and during the continuance of a Specified Default, all Proceeds
of Collateral received by such Grantor shall be delivered in kind to the Administrative
Agent for deposit in a Deposit Account of such Grantor maintained with the Administrative
Agent (together with any other Accounts pursuant to which any portion of the Collateral is
deposited with the Administrative Agent, the “Collateral Accounts”), and such
Grantor shall not commingle any such Proceeds, and shall hold separate and apart from all
other property, all such Proceeds in express trust for the benefit of the Administrative
Agent until delivery thereof is made to the Administrative Agent.




     (c) The Administrative Agent shall have the right to apply any amount in the Collateral
Account to the payment of any Obligations which are due and payable.




     (d) With respect to each of the Collateral Accounts, it is hereby confirmed and agreed
that (i) deposits in such Collateral Account are subject to a security interest as
contemplated hereby, (ii) such Collateral Account shall be under the control of the
Administrative Agent and (iii) the Administrative Agent shall have the sole right of
withdrawal over such Collateral Account.



     SECTION 4.4. As to Grantors’ Use of Collateral.




     (a) Subject to clause (b), each Grantor (i) may in the ordinary course of its
business, at its own expense, sell, lease or furnish under the contracts of service any of
the Inventory normally held by such Grantor for such purpose, and use and consume, in the
ordinary course of its business, any raw materials, work in process or materials normally
held by such Grantor for such purpose, (ii) will, at its own expense, endeavor to collect,
as and when due, all amounts due with respect to any of the Collateral, including the taking
of such action with respect to such collection as the Administrative Agent may request
following the occurrence and during the continuance of a Specified Default or, in the
absence of such request, as such Grantor may deem advisable, and (iii) may grant, in the
ordinary course of business, to any party obligated on any of the Collateral, any rebate,
refund or allowance to which such party may be lawfully entitled, and may accept, in
connection therewith, the return of Goods, the sale or lease of which shall have given rise
to such Collateral.




     (b) At any time following the occurrence and during the continuance of a Specified
Default, whether before or after the maturity of any of the Obligations, the Administrative
Agent may (i) revoke any or all of the rights of each Grantor set forth in clause
(a), (ii) notify any parties obligated on any of the Collateral to make payment to the
Administrative Agent of any amounts due or to become due thereunder and (iii) enforce
collection of any of the Collateral by suit or otherwise and surrender, release, or exchange
all or any part thereof, or compromise or extend or renew for any period



18









 







(whether or not longer than the original period) any indebtedness thereunder or
evidenced thereby.




     (c) Upon request of the Administrative Agent following the occurrence and during the
continuance of a Specified Default, each Grantor will, at its own expense, notify any
parties obligated on any of the Collateral to make payment to the Administrative Agent of
any amounts due or to become due thereunder.




     (d) At any time following the occurrence and during the continuation of a Specified
Default, the Administrative Agent may endorse, in the name of such Grantor, any item,
howsoever received by the Administrative Agent, representing any payment on or other
Proceeds of any of the Collateral.



     SECTION 4.5. As to Intellectual Property Collateral. Each Grantor covenants and
agrees to comply with the following provisions as such provisions relate to any Intellectual
Property Collateral material to the operations or business of such Grantor:




     (a) such Grantor shall not (i) do or fail to perform any act whereby any of the Patent
Collateral may lapse or become abandoned or dedicated to the public or unenforceable, (ii)
itself or permit any of its licensees to (A) fail to continue to use any of the Trademark
Collateral in order to maintain the Trademark Collateral in full force free from any claim
of abandonment for non-use, (B) fail to maintain as in the past the quality of products and
services offered under the Trademark Collateral, (C) fail to employ the Trademark Collateral
registered with any federal or state or foreign authority with an appropriate notice of such
registration, (D) adopt or use any other Trademark which is confusingly similar or a
colorable imitation of any of the Trademark Collateral, unless rights in such Trademark
Collateral inure solely to Grantor and do not infringe or weaken the validity or
enforceability of any of the Intellectual Property Collateral or (E) do or permit any act or
knowingly omit to do any act whereby any of the Trademark Collateral may lapse or become
invalid or unenforceable, or (iii) do or permit any act or knowingly omit to do any act
whereby any of the Copyright Collateral or any of the Trade Secrets Collateral may lapse or
become invalid or unenforceable or placed in the public domain except upon expiration of the
end of an unrenewable term of a registration thereof, unless, in the case of any of the
foregoing requirements in clauses (i), (ii) and (iii), such Grantor
shall reasonably and in good faith determine that any of such Intellectual Property
Collateral is of negligible economic value to such Grantor, and the loss of such
Intellectual Property Collateral would not have a Material Adverse Effect on the business;




     (b) such Grantor shall promptly notify the Administrative Agent if it knows, or
reasonably suspects, that any application or registration relating to any material item of
the Intellectual Property Collateral may become abandoned or dedicated to the public or
placed in the public domain or invalid or unenforceable, or of any adverse determination or
development (including the institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office, the United States Copyright
Office or any foreign counterpart thereof or any court) regarding such



19









 







Grantor’s ownership of any Intellectual Property Collateral, its right to register the
same or to keep and maintain and enforce the same;




     (c) such Grantor shall (i) within sixty (60) days of such Grantor or any of its agents,
employees, designees or licensees filing an application for the registration of any Patent
or Trademark with the United States Patent and Trademark Office or corresponding offices in
other countries of the world (except Japan and Taiwan) or (ii) within twenty (20) days of
such Grantor receiving, as owner or exclusive licensee, a Copyright registration with the
United States Copyright Office or corresponding offices in other countries of the world
(except Japan and Taiwan), inform the Administrative Agent, and upon request of the
Administrative Agent, promptly execute and deliver an Intellectual Property Security
Agreement substantially in the form set forth as Exhibits A, B and C
hereto and other documents as the Administrative Agent may request to evidence the
Administrative Agent’s security interest in such Intellectual Property Collateral;




     (d) such Grantor shall take all necessary steps, including in any proceeding before the
United States Patent and Trademark Office, the United States Copyright Office and
corresponding offices in other countries of the world (except Japan and Taiwan), to maintain
and pursue any application (and to obtain the relevant registration) filed with respect to,
and to maintain any registration of, the Intellectual Property Collateral, including the
filing of applications for renewal, affidavits of use, affidavits of incontestability and
opposition, interference and cancellation proceedings and the payment of fees and taxes
(except to the extent that dedication, abandonment or invalidation is permitted under the
foregoing clause (a) or (b)); and




     (e) such Grantor shall promptly, but within sixty (60) days, after it obtains an
ownership interest in any Patent or Trademark, execute and deliver to the Administrative
Agent a Patent Security Agreement or a Trademark Security Agreement in the form of
Exhibit A and Exhibit B, as applicable, and Grantor shall promptly, but
within twenty (20) days, after it obtains an ownership interest or an exclusive license in
any Copyright, execute and deliver to the Administrative Agent a Copyright Security
Agreement in the form of Exhibit C, and in each case such Grantor shall execute and
deliver to the Administrative Agent any other document required to acknowledge or register,
record or perfect the Administrative Agent’s interest in any part of such item of
Intellectual Property unless such Grantor shall determine in good faith using its
commercially reasonable business judgment (with the consent of the Administrative Agent)
that any such Intellectual Property is not material and is of negligible economic value to
such Grantor.



     SECTION 4.6. As to Letter-of-Credit Rights.




     (a) Each Grantor, by granting a security interest in its Letter-of-Credit Rights to the
Administrative Agent, intends to (and hereby does) collaterally assign to the Administrative
Agent its rights (including its contingent rights ) to the Proceeds of all Letter-of-Credit
Rights of which it is or hereafter becomes a beneficiary or assignee. Such Grantor will
promptly use commercially reasonable efforts to cause the issuer of



20









 







each Letter of Credit and each nominated person (if any) with respect thereto to
consent to such assignment of the Proceeds thereof in a consent agreement in form and
substance reasonably satisfactory to the Administrative Agent and deliver written evidence
of such consent to the Administrative Agent.




     (b) Upon the occurrence and during the continuance of a Specified Default, such Grantor
will, promptly upon request by the Administrative Agent, (i) notify (and such Grantor hereby
authorizes the Administrative Agent to notify) the issuer and each nominated person with
respect to each of the Letters of Credit that the Proceeds thereof have been assigned to the
Administrative Agent hereunder and any payments due or to become due in respect thereof are
to be made directly to the Administrative Agent and (ii) arrange for the Administrative
Agent to become the transferee beneficiary Letter of Credit.



     SECTION 4.7. As to Commercial Tort Claims. Each Grantor covenants and agrees that,
until the Termination Date, with respect to any Commercial Tort Claim in excess of $1,000,000
individually or in the aggregate hereafter arising, it shall deliver to the Administrative Agent a
supplement in form and substance reasonably satisfactory to the Administrative Agent, together with
all supplements to schedules thereto identifying such new Commercial Tort Claims.



     SECTION 4.8. Electronic Chattel Paper and Transferable Records. If any Grantor at any
time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as
that term is defined in Section 201 of the U.S. Federal Electronic Signatures in Global and
National Commerce Act, or in Section 16 of the U.S. Uniform Electronic Transactions Act as in
effect in any relevant jurisdiction, with a value in excess of $1,000,000, such Grantor shall
promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent,
shall take such action as the Administrative Agent may request to vest in the Administrative Agent
control under Section 9-105 of the U.C.C. of such electronic chattel paper or control under Section
201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may
be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of
such transferable record. The Administrative Agent agrees with such Grantor that the
Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent
and so long as such procedures will not result in the Administrative Agent’s loss of control, for
the Grantor to make alterations to the electronic chattel paper or transferable record permitted
under Section 9-105 of the U.C.C. or, as the case may be, Section 201 of the U.S. Federal
Electronic Signatures in Global and National Commerce Act or Section 16 of the U.S. Uniform
Electronic Transactions Act for a party in control to allow without loss of control, unless an
Event of Default has occurred and is continuing or would occur after taking into account any action
by such Grantor with respect to such electronic chattel paper or transferable record.



     SECTION 4.9. Deposit Accounts. Such Grantor will maintain all of its Deposit
Accounts, Securities Accounts and Commodities Accounts (in each case, other than Excluded Accounts)
only with the Administrative Agent or with any depositary institution that has entered into a
Control Agreement.



21









 





     SECTION 4.10. Further Assurances, etc. Each Grantor agrees that, from time to time at
its own expense, it will promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary or that the Administrative Agent may request, in
order to perfect, preserve and protect any security interest granted or purported to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral. Without limiting the generality of the foregoing, such
Grantor will




     (a) from time to time upon the request of the Administrative Agent, promptly deliver to
the Administrative Agent such stock powers, instruments and similar documents, reasonably
satisfactory in form and substance to the Administrative Agent, with respect to such
Collateral as the Administrative Agent may request and will, from time to time upon the
request of the Administrative Agent, after the occurrence and during the continuance of any
Specified Default, promptly transfer any securities constituting Collateral into the name of
any nominee designated by the Administrative Agent; if any Collateral shall be evidenced by
an Instrument, negotiable Document, Promissory Note or tangible Chattel Paper, deliver and
pledge to the Administrative Agent hereunder such Instrument, negotiable Document,
Promissory Note or tangible Chattel Paper duly endorsed and accompanied by duly executed
instruments of transfer or assignment, all in form and substance reasonably satisfactory to
the Administrative Agent;




     (b) file (and hereby authorize the Administrative Agent to file) such Filing Statements
or continuation statements, or amendments thereto, and such other instruments or notices
(including any assignment of claim form under or pursuant to the federal assignment of
claims statute, 31 U.S.C. § 3726, any successor or amended version thereof or any regulation
promulgated under or pursuant to any version thereof), as may be necessary or that the
Administrative Agent may request in order to perfect and preserve the security interests and
other rights granted or purported to be granted to the Administrative Agent hereby;




     (c) deliver to the Administrative Agent and at all times keep pledged to the
Administrative Agent pursuant hereto, on a first-priority, perfected basis, at the request
of the Administrative Agent, all Investment Property constituting Collateral, all
Distributions with respect thereto, and all interest and principal with respect to
Promissory Notes, and all Proceeds and rights from time to time received by or distributable
to such Grantor in respect of any of the foregoing Collateral;




     (d) not take or omit to take any action the taking or the omission of which would
result in any material impairment or alteration of any obligation of the maker of any
Payment Intangible or other Instrument constituting Collateral, except as provided in
Section 4.4;




     (e) not create any tangible Chattel Paper without placing a legend on such tangible
Chattel Paper acceptable to the Administrative Agent indicating that the Administrative
Agent has a security interest in such Chattel Paper;



22









 






     (f) furnish to the Administrative Agent, from time to time at the Administrative
Agent’s request, statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Administrative Agent may
request, all in reasonable detail; and




     (g) do all things requested by the Administrative Agent in accordance with this
Security Agreement in order to enable the Administrative Agent to have and maintain control
over the Collateral consisting of Investment Property (subject to Section 6.25 of the Credit
Agreement), Deposit Accounts (other than Excluded Accounts), Letter-of-Credit-Rights and
Electronic Chattel Paper.



     With respect to the foregoing and the grant of the security interest hereunder, each Grantor
hereby authorizes the Administrative Agent to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the Collateral; and to make all
relevant filings with the United States Patent and Trademark Office, the United States Copyright
Office and corresponding offices in other countries of the world (except Japan and Taiwan) in
respect of the Intellectual Property Collateral. Each Grantor agrees that a carbon, photographic
or other reproduction of this Security Agreement or any UCC financing statement covering the
Collateral or any part thereof shall be sufficient as a UCC financing statement where permitted by
Law. Each Grantor hereby authorizes the Administrative Agent to file financing statements
describing as the collateral covered thereby “all of the debtor’s personal property or assets” or
words to that effect, notwithstanding that such wording may be broader in scope than the Collateral
described in this Security Agreement.



ARTICLE V

THE ADMINISTRATIVE AGENT




     SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. Each Grantor hereby
irrevocably appoints the Administrative Agent its attorney-in-fact, with full authority in the
place and stead of such Grantor and in the name of such Grantor or otherwise, from time to time in
the Administrative Agent’s discretion, following the occurrence and during the continuance of a
Specified Default, to take any action and to execute any instrument which the Administrative Agent
may deem necessary or advisable to accomplish the purposes of this Security Agreement, including:




     (a) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance
and receipts for moneys due and to become due under or in respect of any of the Collateral;




     (b) to receive, endorse, and collect any drafts or other Instruments, Documents and
Chattel Paper, in connection with clause (a) above;




     (c) to file any claims or take any action or institute any proceedings which the
Administrative Agent may deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the Administrative Agent with respect to
any of the Collateral; and



23









 






     (d) to perform the affirmative obligations of such Grantor hereunder.


Each Grantor hereby acknowledges, consents and agrees that the power of attorney granted pursuant
to this Section is irrevocable and coupled with an interest.




     SECTION 5.2. Administrative Agent May Perform. If any Grantor fails to perform any
obligation contained herein, the Administrative Agent may, after prior written notice to such
Grantor, itself perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by such Grantor pursuant to
Section 10.04 of the Credit Agreement.



     SECTION 5.3. Administrative Agent Has No Duty. The powers conferred on the
Administrative Agent hereunder are solely to protect its interest (on behalf of the Secured
Parties) in the Collateral and shall not impose any duty on it to exercise any such powers. Except
for reasonable care of any Collateral in its possession, the accounting for moneys actually
received by it hereunder and any other duties of a secured party provided in the UCC, the
Administrative Agent shall have no duty as to any Collateral or responsibility for




     (a) ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Investment Property, whether or not the
Administrative Agent has or is deemed to have knowledge of such matters, or




     (b) taking any necessary steps to preserve rights against prior parties or any other
rights pertaining to any Collateral.



     SECTION 5.4. Reasonable Care. The Administrative Agent is required to exercise
reasonable care in the custody and preservation of any of the Collateral in its possession;
provided that the Administrative Agent shall be deemed to have exercised reasonable care in
the custody and preservation of any of the Collateral, if it takes such action for that purpose as
each Grantor reasonably requests in writing at times other than upon the occurrence and during the
continuance of any Specified Default, but failure of the Administrative Agent to comply with any
such request at any time shall not in itself be deemed a failure to exercise reasonable care.



ARTICLE VI

REMEDIES




     SECTION 6.1. Certain Remedies. If any Specified Default shall have occurred and be
continuing:




     (a) The Administrative Agent may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it, all the rights
and remedies of a Secured Party on default under the UCC (whether or not the UCC applies to
the affected Collateral) and also may




     (i) take possession of any Collateral not already in its possession without
demand and without legal process;



24









 






     (ii) require each Grantor to, and each Grantor hereby agrees that it will, at
its expense and upon request of the Administrative Agent forthwith, assemble all or
part of the Collateral as directed by the Administrative Agent and make it available
to the Administrative Agent at a place to be designated by the Administrative Agent
that is reasonably convenient to both parties,




     (iii) enter onto the property where any Collateral is located and take
possession thereof without demand and without legal process;




     (iv) without notice except as specified below, lease, license, sell or
otherwise dispose of the Collateral or any part thereof in one or more parcels at
public or private sale, at any of the Administrative Agent’s offices or elsewhere,
for cash, on credit or for future delivery, and upon such other terms as the
Administrative Agent may deem commercially reasonable. Each Grantor agrees that, to
the extent notice of sale shall be required by Law, at least ten days’ prior notice
to such Grantor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Administrative Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Administrative Agent may
adjourn any public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.




     (b) All cash Proceeds received by the Administrative Agent in respect of any sale of,
collection from, or other realization upon, all or any part of the Collateral shall be
applied by the Administrative Agent against, all or any part of the Obligations as set forth
in Section 8.03 of the Credit Agreement.




     (c) The Administrative Agent may




     (i) transfer all or any part of the Collateral into the name of the
Administrative Agent or its nominee, with or without disclosing that such Collateral
is subject to the Lien hereunder,




     (ii) notify the parties obligated on any of the Collateral to make payment to
the Administrative Agent of any amount due or to become due thereunder,




     (iii) withdraw, or cause or direct the withdrawal, of all funds with respect to
the Collateral Account;




     (iv) enforce collection of any of the Collateral by suit or otherwise, and
surrender, release or exchange all or any part thereof, or compromise or extend or
renew for any period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto,




     (v) endorse any checks, drafts, or other writings in any Grantor’s name to
allow collection of the Collateral,



25









 






     (vi) take control of any Proceeds of the Collateral, and




     (vii) execute (in the name, place and stead of any Grantor) endorsements,
assignments, stock powers and other instruments of conveyance or transfer with
respect to all or any of the Collateral.




     (d) Without limiting the foregoing, in respect of the Intellectual Property Collateral:




     (i) upon the request of the Administrative Agent, each Grantor shall execute
and deliver to the Administrative Agent an assignment or assignments of the
Intellectual Property Collateral, subject (in the case of any licenses thereunder)
to any valid and enforceable requirements to obtain consents from any third parties,
and such other documents as are necessary or appropriate to carry out the intent and
purposes hereof;




     (ii) each Grantor agrees that the Administrative Agent may file applications
and maintain registrations for the protection of the Intellectual Property
Collateral and/or bring suit in the name of such Grantor, the Administrative Agent
or any Secured Party to enforce the Intellectual Property Collateral and any
licenses thereunder and, upon the request of the Administrative Agent, each Grantor
shall use all commercially reasonable efforts to assist with such filing or
enforcement (including the execution of relevant documents); and




     (iii) in the event that the Administrative Agent elects not to make any filing
or bring any suit as set forth in clause (ii), each Grantor shall, upon the request
of Administrative Agent, use all commercially reasonable efforts, whether through
making appropriate filings or bringing suit or otherwise, to protect, enforce and
prevent the infringement, misappropriation, dilution, unauthorized use or other
violation of the Intellectual Property Collateral.



     Notwithstanding the foregoing provisions of this Section 6.1, for the purposes of this
Section 6.1, “Collateral” and “Intellectual Property Collateral” shall include any “intent
to use” trademark application only to the extent (i) that the business of such Grantor, or portion
thereof, to which that mark pertains is also included in the Collateral and (ii) that such business
is ongoing and existing.



     SECTION 6.2. Securities Laws. If the Administrative Agent shall determine to exercise
its right to sell all or any of the Collateral that are Equity Interests pursuant to Section
6.1, each Grantor agrees that, upon request of the Administrative Agent, each Grantor will, at
its own expense do or cause to be done all such acts and things as may be necessary to make such
sale of the Collateral or any part thereof valid and binding and in compliance with applicable Law.
Each Grantor acknowledges the impossibility of ascertaining the amount of damages that would be
suffered by the Administrative Agent or the Secured Parties by reason of the failure by such
Grantor to perform any of the covenants contained in this Section and consequently agrees that, if
such Grantor shall fail to perform any of such covenants, it shall pay, as liquidated damages and
not as a penalty, an amount equal to the value (as determined by the Administrative Agent)



26









 







of such Collateral on the date the Administrative Agent shall demand compliance with this
Section.



     SECTION 6.3. Compliance with Restrictions. Each Grantor agrees that in any sale of
any of the Collateral whenever a Specified Default shall have occurred and be continuing, the
Administrative Agent is hereby authorized to comply with any limitation or restriction in
connection with such sale as it may be advised by counsel is necessary in order to avoid any
violation of applicable Law (including compliance with such procedures as may restrict the number
of prospective bidders and purchasers, require that such prospective bidders and purchasers have
certain qualifications, and restrict such prospective bidders and purchasers to Persons who will
represent and agree that they are purchasing for their own account for investment and not with a
view to the distribution or resale of such Collateral), or in order to obtain any required approval
of the sale or of the purchaser by any Governmental Authority or official, and such Grantor further
agrees that such compliance shall not result in such sale being considered or deemed not to have
been made in a commercially reasonable manner, nor shall the Administrative Agent be liable nor
accountable to such Grantor for any discount allowed by the reason of the fact that such Collateral
is sold in compliance with any such limitation or restriction.



     SECTION 6.4. Protection of Collateral. The Administrative Agent may from time to
time, at its option, perform any act which any Grantor fails to perform after being requested in
writing so to perform (it being understood that no such request need be given after the occurrence
and during the continuance of a Specified Default) and the Administrative Agent may from time to
time take any other action which the Administrative Agent deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest therein.



ARTICLE VII

MISCELLANEOUS PROVISIONS




     SECTION 7.1. Loan Document. This Security Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions thereof, including
Article X thereof.



     SECTION 7.2. Binding on Successors, Transferees and Assigns; Assignment. This
Security Agreement shall be binding upon the Grantors and their successors, transferees and assigns
and shall inure to the benefit of and be enforceable by each Secured Party and its successors,
transferees and assigns; provided that no Grantor may (unless otherwise permitted under the
terms of the Credit Agreement or this Security Agreement) assign any of its obligations hereunder
without the prior written consent of all Lenders.



     SECTION 7.3. Amendments, etc. No amendment to or waiver of any provision of this
Security Agreement, nor consent to any departure by any Grantor from its obligations under this
Security Agreement, shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent (on behalf of the Lenders or the Required Lenders, as the case may be,
pursuant to Section 10.01 of the Credit Agreement) and the Grantors and then such



27









 







waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given.



     SECTION 7.4. Notices. All notices and other communications provided for hereunder
shall be in writing or by facsimile and addressed, delivered or transmitted to the appropriate
party at the address or facsimile number of such party specified in the Credit Agreement or at such
other address or facsimile number as may be designated by such party in a notice to the other
party. Any notice or other communication, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by pre-paid courier service, shall be deemed given when received;
any such notice or other communication, if transmitted by facsimile, shall be deemed given when
transmitted and electronically confirmed.



     SECTION 7.5. Release of Liens. Upon (a) the Disposition of Collateral in accordance
with the Credit Agreement or (b) the occurrence of the Termination Date, the security interests
granted herein shall automatically terminate with respect to (i) such Collateral (in the case of
clause (a)) or (ii) all Collateral (in the case of clause (b)), without delivery of
any instrument or performance of any act by any party. Upon any such Disposition or termination,
the Administrative Agent will, at the Grantors’ sole expense, deliver to the Grantors, without any
representations, warranties or recourse of any kind whatsoever, all Collateral held by the
Administrative Agent hereunder, and execute and deliver to the Grantors such documents as the
Grantors shall reasonably request to evidence such termination.



     SECTION 7.6. Additional Grantors. Upon the execution and delivery by any other Person
of a supplement in the form of Annex I hereto, such Person shall become a “Grantor”
hereunder with the same force and effect as if it were originally a party to this Security
Agreement and named as a “Grantor” hereunder. The execution and delivery of such supplement shall
not require the consent of any other Grantor hereunder, and the rights and obligations of each
Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new
Grantor as a party to this Security Agreement.



     SECTION 7.7. No Waiver; Remedies. In addition to, and not in limitation of
Section 2.4, no failure on the part of any Secured Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by Law.



     SECTION 7.8. Headings. The various headings of this Security Agreement are inserted
for convenience only and shall not affect the meaning or interpretation of this Security Agreement
or any provisions thereof.



     SECTION 7.9. Severability. If any provision of this Security Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Security Agreement and the other Loan Documents
shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the illegal, invalid or



28









 







unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.



     SECTION 7.10. Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS
SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.



     (b) SUBMISSION TO JURISDICTION. EACH GRANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS 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 SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
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 COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE 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 BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS SECURITY AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST ANY GRANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. EACH GRANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. EACH
FOREIGN OBLIGOR HEREBY IRREVOCABLY APPOINTS THE COMPANY, AS ITS AUTHORIZED AGENT TO RECEIVE
ON ITS BEHALF SERVICE OF ALL



29









 







PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT AND CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY SUCH COURTS BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE
PREPAID, TO SUCH AGENT AT SUCH ADDRESS, AND AGREES THAT SUCH SERVICE, TO THE FULLEST EXTENT
PERMITTED BY LAW: (I) SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON IT
IN ANY SUCH SUIT, ACTION OR PROCEEDING; AND (II) SHALL BE TAKEN AND HELD TO BE VALID
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT. IF ANY AGENT APPOINTED BY ANY PERSON
PARTY HERETO REFUSES TO ACCEPT SERVICE, SUCH PERSON HEREBY AGREES THAT SERVICE UPON IT BY
MAIL SHALL UPON RECEIPT CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN CONTAINED SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF
ANY OTHER PERSON PARTY HERETO TO BRING PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS OF ANY
OTHER JURISDICTION.



     SECTION 7.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 SECURITY AGREEMENT OR
ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
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 SECURITY AGREEMENT AND
THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.



     SECTION 7.12. California Judicial Reference. If any action or proceeding is filed in
a court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Security Agreement or any other Loan Document, (a) the court
shall, and is hereby directed to, make a general reference pursuant to California Code of Civil
Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear and
determine all of the issues in such action or proceeding (whether of fact or of Law) and to report
a statement of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Grantors, jointly and severally, shall be solely
responsible to pay all fees and expenses of any referee appointed in such action or proceeding.



     SECTION 7.13. Counterparts. This Security Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original and all of which



30









 







shall constitute together but one and the same agreement. Delivery of an executed counterpart
of a signature page to this Security Agreement by facsimile or via other electronic means shall be
effective as delivery of a manually executed counterpart of this Security Agreement.



     SECTION 7.14. Security Agreements. Without limiting any of the rights, remedies,
privileges or benefits provided hereunder to the Administrative Agent for its benefit and the
ratable benefit of the other Secured Parties, each Grantor and the Administrative Agent hereby
agree that the terms and provisions of this Security Agreement in respect of any Collateral subject
to the pledge or other Lien of any other Security Agreement (as defined in the Credit Agreement)
are, and shall be deemed to be, supplemental and in addition to the rights, remedies, privileges
and benefits provided to the Administrative Agent and the other Secured Parties under such other
Security Agreement (as defined in the Credit Agreement) and under applicable Law to the extent
consistent with applicable Law; provided that, in the event that the terms of this Security
Agreement conflict or are inconsistent with the applicable other Security Agreement (as defined in
the Credit Agreement) or applicable Law governing such other Security Agreement (as defined in the
Credit Agreement), (a) to the extent that the provisions of such other Security Agreement (as
defined in the Credit Agreement) or applicable foreign Law are, under applicable foreign Law,
necessary for the creation, perfection or priority of the security interests in the Collateral
subject to such Foreign Pledge Agreement, the terms of such other Security Agreement (as defined in
the Credit Agreement) or such applicable Law shall be controlling and (b) otherwise, the terms
hereof shall be controlling.



     SECTION 7.15. ENTIRE AGREEMENT. THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



31









 





     IN WITNESS WHEREOF, each of the parties hereto has caused this Security Agreement to be duly
executed and delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	ASYST TECHNOLOGIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASYST JAPAN, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASYST SHINKO, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASYST TECHNOLOGIES TAIWAN, LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




32










 





	 	 	 	 	 
	 	ASYST SHINKO AMERICA, INC. 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	ASYST SHINKO TAIWAN, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




33









 





	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




34









 








SCHEDULE I

to Security Agreement




Name of Grantor:




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Common Stock
	 	 	 	 	 	 	Authorized	 	Outstanding	 	% of Shares
	Issuer (corporate)	 	Cert. #	 	# of Shares	 	Shares	 	Shares	 	Pledged
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 





	 	 	 	 	 
	 	 	Limited Liability Company Interests
	 	 	% of Limited Liability	 	Type of Limited Liability
	Issuer (limited liability company)	 	Company Interests Pledged	 	Company Interests Pledged
	 
	 	 	 	 
	 
	 	 	 	 





	 	 	 	 	 
	 	 	Partnership Interests
	 	 	% of Partnership	 	% of Partnership
	Issuer (partnership)	 	Interests Owned	 	Interests Pledged
	 
	 	 	 	 
	 
	 	 	 	 





35









 





SCHEDULE II

to Security Agreement




Item A. Location of each Grantor.




	 	 	 
	Name of Grantor:

	 	Location for purposes of UCC:
	 
	 	 
	[GRANTOR]

	 	[LOCATION]






Item B. Filing locations last five years.




	 	 	 
	Name of Grantor:

	 	Filing locations last five years
	 
	 	 
	[GRANTOR]

	 	[LOCATION]






Item C. Trade names.




	 	 	 
	Name of Grantor:

	 	Trade Names:
	 
	[GRANTOR]
	 	 






Item D. Merger or other corporate reorganization.




	 	 	 
	Name of Grantor:

	 	Merger or other corporate reorganization:
	 
	 	 
	[GRANTOR]
	 	 






36









 





Item E. Taxpayer ID numbers.




	 	 	 
	Name of Grantor:

	 	Taxpayer ID numbers:
	 
	 	 
	[GRANTOR]
	 	 






Item F. Government Contracts.




	 	 	 
	Name of Grantor:

	 	Description of Contract:
	 
	 	 
	[GRANTOR]
	 	 






Item G. Deposit Accounts and Securities Accounts.




	 	 	 
	Name of Grantor:

	 	Description of Deposit Accounts and Securities Accounts:
	 
	 	 
	[GRANTOR]
	 	 






Item H. Letter of Credit Rights.




	 	 	 
	Name of Grantor:

	 	Description of Letter of Credit Rights:
	 
	 	 
	[GRANTOR]
	 	 






Item I. Commercial Tort Claims.




	 	 	 
	Name of Grantor:

	 	Description of Commercial Tort Claims:
	 
	 	 
	[GRANTOR]
	 	 






37









 





SCHEDULE III

to Security Agreement




Item A. Patents




Issued Patents




	 	 	 	 	 	 	 	 	 
	Country	 	Patent No.	 	Issue Date	 	Inventor(s)	 	Title
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





Pending Patent Applications




	 	 	 	 	 	 	 	 	 
	Country	 	Serial No.	 	Filing Date	 	Inventor(s)	 	Title
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





Patent Applications In Preparation




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Expected	 	 	 	 
	Country	 	Docket No.	 	Filing Date	 	Inventor(s)	 	Title
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





38









 





Item B. Patent Licenses




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Effective	 	Expiration
	Country or Territory	 	Patent	 	Licensor	 	Licensee	 	Date	 	Date
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 





39









 





SCHEDULE IV

to Security Agreement




Item A. Trademarks




Registered Trademarks




	 	 	 	 	 	 	 
	Country	 	Trademark	 	Registration No.	 	Registration Date
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Pending Trademark Applications




	 	 	 	 	 	 	 
	Country	 	Trademark	 	Serial No.	 	Filing Date
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Trademark Applications In Preparation




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Expected	 	Products/
	Country	 	Trademark	 	Docket No.	 	Filing Date	 	Services
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





Item B. Trademark Licenses




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Effective	 	Expiration
	Country or Territory	 	Trademark	 	Licensor	 	Licensee	 	Date	 	Date
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 





40









 





SCHEDULE V

to Security Agreement




Item A. Copyrights/Mask Works




Registered Copyrights/Mask Works




	 	 	 	 	 	 	 	 	 
	Country	 	Registration No.	 	Registration Date	 	Author(s)	 	Title
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





Copyright/Mask Work Pending Registration Applications




	 	 	 	 	 	 	 	 	 
	Country	 	Serial No.	 	Filing Date	 	Author(s)	 	Title
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





Copyright/Mask Work Registration Applications In Preparation




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Expected	 	 	 	 
	Country	 	Docket No.	 	Filing Date	 	Author(s)	 	Title
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





     Item B. Copyright/Mask Work Licenses (including an indication of exclusive Licenses for U.S.
registered Copyrights)



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Effective	 	Expiration
	Country or Territory	 	Copyright	 	Licensor	 	Licensee	 	Date	 	Date
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 





41









 





EXHIBIT A

to Security Agreement




PATENT SECURITY AGREEMENT




     This PATENT SECURITY AGREEMENT, dated as of                      ___, 200___(this “Agreement”), is
made by [NAME OF GRANTOR], a                                           (the “Grantor”), in favor of KEYBANK NATIONAL
ASSOCIATION, as the administrative agent (together with its successor(s) thereto in such capacity,
the “Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H :




     WHEREAS, pursuant to a Credit Agreement, dated as of July ___, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Company, Asyst Japan, Inc., a Japanese corporation (“AJI”), Asyst Shinko, In c. a
Japanese Corporation (“ASI”) and certain other Subsidiaries of the Company party thereto
from time to time (each a “Designated Borrower” and, collectively with the Company, AJI and
ASI, the “Borrowers”), the Lenders and the Administrative Agent, the Lenders and the L/C
Issuer have extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, in connection with the Credit Agreement, the Grantor has executed and delivered a US
Pledge and Security Agreement, dated as of July ___, 2007 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the “Security Agreement”);



     WHEREAS, pursuant to the Credit Agreement and pursuant to clause (e) of Section 4.5 of the
Security Agreement, the Grantor is required to execute and deliver this Agreement and to grant to
the Administrative Agent a continuing security interest in all of the Patent Collateral (as defined
below) to secure all Obligations as set forth in Section 2.2 of the Credit Agreement; and



     WHEREAS, the Grantor has duly authorized the execution, delivery and performance of this
Agreement; and



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantor agrees, for the benefit of each Secured Party, as follows:



     SECTION 1. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms used in this Agreement, including its preamble and recitals, have the meanings
provided in the Security Agreement.



     SECTION 2. Grant of Security Interest. The Grantor hereby grants to the
Administrative Agent, for its benefit and the ratable benefit of each other Secured Party, a
continuing security interest in all of the Grantor’s right, title and interest throughout the world



A-1









 







(except Japan and
Taiwan), whether now or hereafter existing or acquired by the Grantor, in and to the following
(Patent Collateral”):




     (a) inventions and discoveries, whether patentable or not, all letters patent and
applications for letters patent throughout the world (except Japan and Taiwan), including
all patent applications in preparation for filing, including all reissues, divisions,
continuations, continuations-in-part, extensions, renewals and reexaminations of any of the
foregoing (“Patents”), including each Patent and Patent application referred to in
Item A of Schedule I;




     (b) all Patent licenses, and other agreements for the grant by or to such Grantor of
any right to use any items of the type referred to in clause (a) above (each a
“Patent License”), including each Patent License referred to in Item B of
Schedule I;




     (c) the right to sue third parties for past, present and future infringements of any
Patent or Patent application, and for breach or enforcement of any Patent License; and




     (d) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits).



     Notwithstanding the foregoing, Patent Collateral shall not include those items set forth in
clauses (i) through (v) of Section 2.1 of the Security Agreement.



     SECTION 3. Security Agreement. This Agreement has been executed and delivered by the
Grantor for the purpose of registering the security interest of the Administrative Agent in the
Patent Collateral with the United States Patent and Trademark Office and corresponding offices in
other countries of the world (except Japan and Taiwan). The security interest granted hereby has
been granted as a supplement to, and not in limitation of, the security interest granted to the
Administrative Agent for its benefit and the ratable benefit of each other Secured Party under the
Security Agreement. The Security Agreement (and all rights and remedies of the Administrative
Agent and each Secured Party thereunder) shall remain in full force and effect in accordance with
its terms.



     SECTION 4. Waiver, etc. The Grantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations, this Agreement and the
Security Agreement and any requirement that any Secured Party protect, secure, perfect or insure
any Lien, or any property subject thereto, or exhaust any right or take any action against any Loan
Party or any other Person (including any other Grantor) or entity or any Collateral securing the
Obligations, as the case may be. The Grantor waives any rights and defenses that are or may become
available to Grantor by reason of §§ 2787 to 2855, inclusive, and §§ 2899 and 3433 of the
California Civil Code. As provided below, this Agreement shall be governed by, and construed in
accordance with, the Laws of the State of New York. The foregoing waivers and the provisions
hereinafter set forth in this Agreement and the Security Agreement which pertain to California Law
are included solely out of an abundance of caution, and shall not be construed



A-2









 







to mean that any of the above-referenced provisions of California Law are in any way
applicable to this Agreement, the Security Agreement or the Obligations.



     SECTION 5. Release of Liens. Upon (i) the Disposition of Patent Collateral in
accordance with the Credit Agreement or (ii) the occurrence of the Termination Date, the security
interests granted herein shall automatically terminate with respect to (A) such Patent Collateral
(in the case of clause (i)) or (B) all Patent Collateral (in the case of clause
(ii)). Upon any such Disposition or termination, the Administrative Agent will, at the
Grantor’s sole expense, release without any representations, warranties or recourse of any kind
whatsoever, all Patent Collateral held by the Administrative Agent hereunder, and execute and
deliver to the Grantor such Documents as the Grantor shall reasonably request to evidence such
termination.



     SECTION 6. Acknowledgment. The Grantor does hereby further acknowledge and affirm
that the rights and remedies of the Administrative Agent with respect to the security interest in
the Patent Collateral granted hereby are more fully set forth in the Security Agreement, the terms
and provisions of which (including the remedies provided for therein) are incorporated by reference
herein as if fully set forth herein.



     SECTION 7. Loan Document. This Agreement is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof, including Article X thereof.



     SECTION 8. Governing Law, Entire Agreement, etc. THIS AGREEMENT WILL BE DEEMED TO BE
A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.



     SECTION 9. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Agreement, the Security Agreement or any other Loan Document, (a)
the court shall, and is hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear
and determine all of the issues in such action or proceeding (whether of fact or of Law) and to
report a statement of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Grantors (including the undersigned), jointly and
severally, shall be solely responsible to pay all fees and expenses of any referee appointed in
such action or proceeding.



A-3









 





     SECTION 10. Counterparts. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Agreement.



     SECTION 11. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



*     *     *     *     *




A-4









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-5









 





SCHEDULE I

to Patent Security Agreement




Item A. Patents




	 	 	 	 	 	 	 	 	 
	Issued Patents	 	 	 	 	 	 
	Country	 	Patent No.	 	Issue Date	 	Inventor(s)	 	Title
	 
	 	 	 	 	 	 	 	 





Pending Patent Applications




	 	 	 	 	 	 	 	 	 
	Country	 	Serial No.	 	Filing Date	 	Inventor(s)	 	Title
	 
	 	 	 	 	 	 	 	 





Patent Applications in Preparation




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Expected	 	 	 	 
	Country	 	Docket No.	 	Filing Date	 	Inventor(s)	 	Title
	 
	 	 	 	 	 	 	 	 





Item B. Patent Licenses




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Effective	 	Expiration
	Country or Territory	 	Patent	 	Licensor	 	Licensee	 	Date	 	Date
	 
	 	 	 	 	 	 	 	 	 	 






A-6









 








EXHIBIT B

to Security Agreement




TRADEMARK SECURITY AGREEMENT




     This TRADEMARK SECURITY AGREEMENT, dated as of                      ___, 200___(this “Agreement”),
is made by [NAME OF GRANTOR], a                                           (the “Grantor”), in favor of KEYBANK
NATIONAL ASSOCIATION, as the administrative agent (together with its successor(s) thereto in such
capacity, the “Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H :




     WHEREAS, pursuant to a Credit Agreement, dated as of July ___, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Company, Asyst Japan, Inc., a Japanese corporation (“AJI”), Asyst Shinko, Inc., a
Japanese corporation (“ASI”), and certain other Subsidiaries of the Company party thereto
from time to time (each a “Designated Borrower” and, collectively with the Company, AJI and
ASI, the “Borrowers”), the Lenders and the Administrative Agent, the Lenders and the L/C
Issuer have extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, in connection with the Credit Agreement, the Grantor has executed and delivered a US
Pledge and Security Agreement, dated as of July ___, 2007 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the “Security Agreement”);



     WHEREAS, pursuant to the Credit Agreement and pursuant to clause (e) of Section 4.5 of the
Security Agreement, the Grantor is required to execute and deliver this Agreement and to grant to
the Administrative Agent a continuing security interest in all of the Trademark Collateral (as
defined below) to secure all Obligations as set forth in Section 2.2 of the Credit Agreement; and



     WHEREAS, the Grantor has duly authorized the execution, delivery and performance of this
Agreement; and



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantor agrees, for the benefit of each Secured Party, as follows:



     SECTION 1. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms used in this Agreement, including its preamble and recitals, have the meanings
provided in the Security Agreement.



     SECTION 2. Grant of Security Interest. The Grantor hereby grants to the
Administrative Agent, for its benefit and the ratable benefit of each other Secured Party, a
continuing security interest in all of the Grantor’s right, title and interest throughout the world



B-1









 







(except Japan and
Taiwan), whether now or hereafter existing or acquired by the Grantor, in and to the following
(the “Trademark Collateral”):




     (a) (i) all trademarks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, service marks, certification marks, collective
marks, logos and other source or business identifiers, and all goodwill of the business
associated therewith, now existing or hereafter adopted or acquired, whether currently in
use or not, all registrations and recordings thereof and all applications in connection
therewith, whether pending or in preparation for filing, including registrations, recordings
and applications in the United States Patent and Trademark Office and corresponding offices
in other countries of the world (except Japan and Taiwan) or otherwise, and all common-Law
rights relating to the foregoing, and (ii) the right to obtain all reissues, extensions or
renewals of the foregoing (collectively referred to as “Trademarks”), including
those Trademarks referred to in Item A of Schedule I;




     (b) all Trademark licenses and other agreements for the grant by or to such Grantor of
any right to use any Trademark (each a “Trademark License”), including each
Trademark License referred to in Item B of Schedule I;




     (c) all of the goodwill of the business connected with the use of, and symbolized by
the Trademarks described in clause (a) and, to the extent applicable, clause
(b);




     (d) the right to sue third parties for past, present and future infringements or
dilution of the Trademarks described in clause (a) and, to the extent applicable,
clause (b) or for any injury to the goodwill associated with the use of any such
Trademark or for breach or enforcement of any Trademark License; and




     (e) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits).



     Notwithstanding the foregoing, Trademark Collateral shall not include those items set forth in
clauses (i) through (v) of Section 2.1 of the Security Agreement.



     SECTION 3. Security Agreement. This Agreement has been executed and delivered by the
Grantor for the purpose of registering the security interest of the Administrative Agent in the
Trademark Collateral with the United States Patent and Trademark Office and corresponding offices
in other countries of the world (except Japan and Taiwan). The security interest granted hereby
has been granted as a supplement to, and not in limitation of, the security interest granted to the
Administrative Agent for its benefit and the ratable benefit of each other Secured Party under the
Security Agreement. The Security Agreement (and all rights and remedies of the Administrative
Agent and each Secured Party thereunder) shall remain in full force and effect in accordance with
its terms.



     SECTION 4. Waiver, etc. The Grantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations, this Agreement and the



B-2









 







Security Agreement and any requirement that any Secured Party protect, secure, perfect or
insure any Lien, or any property subject thereto, or exhaust any right or take any action against
any Loan Party or any other Person (including any other Grantor) or entity or any Collateral
securing the Obligations, as the case may be. The Grantor waives any rights and defenses that are
or may become available to Grantor by reason of §§ 2787 to 2855, inclusive, and §§ 2899 and 3433 of
the California Civil Code. As provided below, this Agreement shall be governed by, and construed
in accordance with, the Laws of the State of New York. The foregoing waivers and the provisions
hereinafter set forth in this Agreement and the Security Agreement which pertain to California Law
are included solely out of an abundance of caution, and shall not be construed to mean that any of
the above-referenced provisions of California Law are in any way applicable to this Agreement, the
Security Agreement or the Obligations.



     SECTION 5. Release of Liens. Upon (i) the Disposition of Trademark Collateral in
accordance with the Credit Agreement or (ii) the occurrence of the Termination Date, the security
interests granted herein shall automatically terminate with respect to (A) such Trademark
Collateral (in the case of clause (i)) or (B) all Trademark Collateral (in the case of
clause (ii)). Upon any such Disposition or termination, the Administrative Agent will, at
the Grantor’s sole expense, release without any representations, warranties or recourse of any kind
whatsoever, all Trademark Collateral held by the Administrative Agent hereunder, and execute and
deliver to the Grantor such Documents as the Grantor shall reasonably request to evidence such
termination.



     SECTION 6. Acknowledgment. The Grantor does hereby further acknowledge and affirm
that the rights and remedies of the Administrative Agent with respect to the security interest in
the Trademark Collateral granted hereby are more fully set forth in the Security Agreement, the
terms and provisions of which (including the remedies provided for therein) are incorporated by
reference herein as if fully set forth herein.



     SECTION 7. Loan Document. This Agreement is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof, including Article X thereof.



     SECTION 8. Governing Law, Entire Agreement, etc. THIS AGREEMENT WILL BE DEEMED TO BE
A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.



     SECTION 9. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Agreement, the Security Agreement or any other Loan Document, (a)
the court shall, and is hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear
and determine all of the issues in such action or proceeding (whether of fact or of Law) and to
report a statement of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Grantors (including



B-3









 







the undersigned), jointly and severally, shall be solely responsible to pay all fees and
expenses of any referee appointed in such action or proceeding.



     SECTION 10. Counterparts. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Agreement.



     SECTION 11. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



*     *     *     *     *




B-4









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered by Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




B-5









 





SCHEDULE I

to Trademark Security Agreement




Item A. Trademarks




Registered Trademarks




	 	 	 	 	 	 	 
	Country	 	Trademark	 	Registration No.	 	Registration Date
	 
	 	 	 	 	 	 





Pending Trademark Applications




	 	 	 	 	 	 	 
	Country	 	Trademark	 	Serial No.	 	Filing Date
	 
	 	 	 	 	 	 





Trademark Applications in Preparation




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Expected	 	Products/
	Country	 	Trademark	 	Docket No.	 	Filing Date	 	Services
	 
	 	 	 	 	 	 	 	 





Item B. Trademark Licenses




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Effective	 	Expiration
	Country or Territory	 	Trademark	 	Licensor	 	Licensee	 	Date	 	Date
	 
	 	 	 	 	 	 	 	 	 	 






B-6









 








EXHIBIT C

to Security Agreement




COPYRIGHT SECURITY AGREEMENT




     This COPYRIGHT SECURITY AGREEMENT, dated as of                      ___, 200___(this “Agreement”),
is made by [NAME OF GRANTOR], a                                           (the “Grantor”), in favor of KEYBANK
NATIONAL ASSOCIATION, as the administrative agent (together with its successor(s) thereto in such
capacity, the “Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H :




     WHEREAS, pursuant to a Credit Agreement, dated as of July ___, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Company, Asyst Japan, Inc., a Japanese corporation (“AJI”), Asyst Shinko, Inc., a
Japanese corporation (“ASI”), and certain other Subsidiaries of the Company party thereto
from time to time (each a “Designated Borrower” and, collectively with the Company, AJI and
ASI, the “Borrowers”), the Lenders and the Administrative Agent, the Lenders and the L/C
Issuer have extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, in connection with the Credit Agreement, the Grantor has executed and delivered a US
Pledge and Security Agreement, dated as of July ___, 2007 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the “Security Agreement”);



     WHEREAS, pursuant to the Credit Agreement and pursuant to clause (e) of Section 4.5 of the
Security Agreement, the Grantor is required to execute and deliver this Agreement and to grant to
the Administrative Agent a continuing security interest in all of the Copyright Collateral (as
defined below) to secure all Obligations as set forth in Section 2.2 of the Credit Agreement; and



     WHEREAS, the Grantor has duly authorized the execution, delivery and performance of this
Agreement; and



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantor agrees, for the benefit of each Secured Party, as follows:



     SECTION 1. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms used in this Agreement, including its preamble and recitals, have the meanings
provided in the Security Agreement.



     SECTION 2. Grant of Security Interest. The Grantor hereby grants to the
Administrative Agent, for its benefit and the ratable benefit of each other Secured Party, a
continuing security interest in all of the Grantor’s right, title and interest throughout the world



C-1









 







(except Japan and
Taiwan), whether now or hereafter existing or acquired by the Grantor, in and to the following
(the “Copyright Collateral”):




     (a) all copyrights, registered or unregistered and whether published or unpublished,
now or hereafter in force including copyrights registered in the United States Copyright
Office and corresponding offices in other countries of the world (except Japan and Taiwan),
and registrations and recordings thereof and all applications for registration thereof,
whether pending or in preparation and all extensions and renewals of the foregoing
(“Copyrights”), including the Copyrights which are the subject of a registration or
application referred to in Item A of Schedule I;




     (b) all express or implied Copyright licenses and other agreements for the grant by or
to such Grantor of any right to use any items of the type referred to in clause (a) above
(each a “Copyright License”), including each Copyright License referred to in
Item B of Schedule I;




     (c) the right to sue for past, present and future infringements of any of the
Copyrights owned by such Grantor, and for breach or enforcement of any Copyright License and
all extensions and renewals of any thereof; and




     (d) all proceeds of, and rights associated with, the foregoing (including Proceeds,
licenses, royalties, income, payments, claims, damages and proceeds of infringement suits).



     Notwithstanding the foregoing, Copyright Collateral shall not include those items set forth in
clauses (i) through (v) of Section 2.1 of the Security Agreement.



     SECTION 3. Security Agreement. This Agreement has been executed and delivered by the
Grantor for the purpose of registering the security interest of the Administrative Agent in the
Copyright Collateral with the United States Copyright Office and corresponding offices in other
countries of the world (except Japan and Taiwan). The security interest granted hereby has been
granted as a supplement to, and not in limitation of, the security interest granted to the
Administrative Agent for its benefit and the ratable benefit of each other Secured Party under the
Security Agreement. The Security Agreement (and all rights and remedies of the Administrative
Agent and each Secured Party thereunder) shall remain in full force and effect in accordance with
its terms.



     SECTION 4. Waiver, etc. The Grantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations, this Agreement and the
Security Agreement and any requirement that any Secured Party protect, secure, perfect or insure
any Lien, or any property subject thereto, or exhaust any right or take any action against any Loan
Party or any other Person (including any other Grantor) or entity or any Collateral securing the
Obligations, as the case may be. The Grantor waives any rights and defenses that are or may become
available to Grantor by reason of §§ 2787 to 2855, inclusive, and §§ 2899 and 3433 of the
California Civil Code. As provided below, this Agreement shall be governed by, and construed in
accordance with, the Laws of the State of New York. The foregoing waivers and the provisions
hereinafter set forth in this Agreement and the Security Agreement which pertain to California Law
are included solely out of an abundance of caution, and shall not be construed



C-2









 







to mean that any of the above-referenced provisions of California Law are in any way
applicable to this Agreement, the Security Agreement or the Obligations.



     SECTION 5. Release of Liens. Upon (i) the Disposition of Copyright Collateral in
accordance with the Credit Agreement or (ii) the occurrence of the Termination Date, the security
interests granted herein shall automatically terminate with respect to (A) such Copyright
Collateral (in the case of clause (i)) or (B) all Copyright Collateral (in the case of
clause (ii)). Upon any such Disposition or termination, the Administrative Agent will, at
the Grantor’s sole expense, release without any representations, warranties or recourse of any kind
whatsoever, all Copyright Collateral held by the Administrative Agent hereunder, and execute and
deliver to the Grantor such Documents as the Grantor shall reasonably request to evidence such
termination.



     SECTION 6. Acknowledgment. The Grantor does hereby further acknowledge and affirm
that the rights and remedies of the Administrative Agent with respect to the security interest in
the Copyright Collateral granted hereby are more fully set forth in the Security Agreement, the
terms and provisions of which (including the remedies provided for therein) are incorporated by
reference herein as if fully set forth herein.



     SECTION 7. Loan Document. This Agreement is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof, including Article X thereof.



     SECTION 8. Governing Law, Entire Agreement, etc. THIS SUPPLEMENT WILL BE DEEMED TO BE
A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR
SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).



     SECTION 9. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Agreement, the Security Agreement or any other Loan Document, (a)
the court shall, and is hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear
and determine all of the issues in such action or proceeding (whether of fact or of Law) and to
report a statement of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Grantors (including the undersigned), jointly and
severally, shall be solely responsible to pay all fees and expenses of any referee appointed in
such action or proceeding.



C-3









 





     SECTION 10. Counterparts. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile or via other electronic means shall be effective as
delivery of a manually executed counterpart of this Agreement.



     SECTION 11. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



*     *     *     *     *




C-4









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




C-5









 





SCHEDULE I

to Copyright Security Agreement




Item A. Copyrights/Mask Works




Registered Copyrights/Mask Works





	 	 	 	 	 	 	 	 	 
	Country	 	Registration No.	 	Registration Date	 	Author(s) 	 	Title







	 
	 






Copyright/Mask Work Pending Registration Applications




	 	 	 	 	 	 	 	 	 
	Country	 	Serial No.	 	Filing Date	 	Author(s)	 	Title
	 
	 	 	 	 	 	 	 	 





Copyright/Mask Work Registration Applications in Preparation




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Expected	 	 	 	 
	Country	 	Docket No.	 	Filing Date	 	Author(s)	 	Title
	 
	 	 	 	 	 	 	 	 




Item B. Copyright/Mask Work Licenses (including an indication of exclusive Licenses for U.S.
registered Copyrights)




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Effective	 	Expiration
	Country or Territory	 	Copyright	 	Licensor	 	Licensee	 	Date	 	Date
	 
	 	 	 	 	 	 	 	 	 	 






C-6









 








ANNEX I

to Security Agreement




SUPPLEMENT TO

PLEDGE AND SECURITY AGREEMENT




     This SUPPLEMENT, dated as of                                          ___,            (this “Supplement”), is to the US
Pledge and Security Agreement, dated as of July ___, 2007 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the “Security Agreement”), among the
Grantors (such term, and other terms used in this Supplement, to have the meanings set forth in
Article I of the Security Agreement) from time to time party thereto, in favor of KEYBANK NATIONAL
ASSOCIATION, as the administrative agent (together with its successor(s) thereto in such capacity,
the “Administrative Agent”) for each of the Secured Parties.



W I T N E S S E T H :




     WHEREAS, pursuant to a Credit Agreement, dated as of July ___, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Company, Asyst Japan, Inc., a Japanese corporation (“AJI”), Asyst Shinko, Inc., a
Japanese corporation (“ASI”) and certain other Subsidiaries of the Company party thereto
from time to time (each a “Designated Borrower” and, collectively with the Company, AJI,
and ASI, the “Borrowers”), the Lenders and the Administrative Agent, the Lenders and the
L/C Issuer have extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, pursuant to the provisions of Section 7.6 of the Security Agreement, each of the
undersigned is becoming a Grantor under the Security Agreement; and



     WHEREAS, each of the undersigned desires to become a “Grantor” under the Security Agreement in
order to induce the Secured Parties to continue to make Credit Extensions under the Credit
Agreement;



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, each of the undersigned agrees, for the benefit of each Secured Party, as
follows.



Annex I-1









 





     SECTION 1. Party to Security Agreement, etc. In accordance with the terms of the
Security Agreement, by its signature below each of the undersigned hereby irrevocably agrees to
become a Grantor under the Security Agreement with the same force and effect as if it were an
original signatory thereto and each of the undersigned hereby (a) agrees to be bound by and comply
with all of the terms and provisions of the Security Agreement applicable to it as a Grantor and
(b) represents and warrants that the representations and warranties made by it as a Grantor
thereunder are true and correct as of the date hereof, unless stated to relate solely to an earlier
date, in which case such representations and warranties shall be true and correct as of such
earlier date. In furtherance of the foregoing, each reference to a “Grantor” and/or “Grantors” in
the Security Agreement shall be deemed to include each of the undersigned.



     SECTION 2. Representations. Each of the undersigned Grantor hereby represents and
warrants that this Supplement has been duly authorized, executed and delivered by it and that this
Supplement and the Security Agreement constitute the legal, valid and binding obligation of each of
the undersigned, enforceable against it in accordance with its terms.



     SECTION 3. Full Force of Security Agreement. Except as expressly supplemented hereby,
the Security Agreement shall remain in full force and effect in accordance with its terms.



     SECTION 4. Severability. If any provision of this Supplement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Supplement and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



     SECTION 5. Governing Law, Entire Agreement, etc. THIS SUPPLEMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.



     SECTION 6. California Judicial Reference. If any action or proceeding is filed in a
court of the State of California by or against any party hereto in connection with any of the
transactions contemplated by this Supplement, the Security Agreement or any other Loan Document,
(a) the court shall, and is hereby directed to, make a general reference pursuant to California
Code of Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to
hear and determine all of the issues in such action or proceeding (whether of fact or of Law) and
to report a statement of decision, provided that at the option of any party to such proceeding, any
such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure
Section 1281.8 shall be heard and determined by the court; and (b) without limiting the generality
of Section 10.04 of the Credit Agreement, the Grantors (including the undersigned), jointly and
severally, shall be solely responsible to pay all fees and expenses of any referee appointed in
such action or proceeding.



     SECTION 7. Counterparts. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a



Annex I-2









 







signature page to this Supplement by facsimile or via other electronic means shall be
effective as delivery of a manually executed counterpart of this Supplement.



     SECTION 8. ENTIRE AGREEMENT. THIS SUPPLEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



*     *     *     *     *




Annex I-3









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[NAME OF ADDITIONAL SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



ACCEPTED AND AGREED FOR ITSELF

AND ON BEHALF OF THE SECURED PARTIES:




	 	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION,
	          as Administrative Agent
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






Annex I-4









 





[COPY SCHEDULES FROM SECURITY AGREEMENT]





Annex I-5










 





EXHIBIT
G-2-A



Dated July 27, 2007




ASYST JAPAN INC.




as Collateral Provider




and




Financial Institutions Listed in Annex I




as Secured Parties

and




KEYBANK NATIONAL ASSOCIATION




as Collateral Agent for the Secured Parties




SECURITY AGREEMENT




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	Section 1. Creation of Security
	 	 	1	 
	 
	 	 	 	 
	Section 2. Perfection of Security
	 	 	3	 
	 
	 	 	 	 
	Section 3. Security for Obligations
	 	 	4	 
	 
	 	 	 	 
	Section 4. Collateral Provider Remains Liable
	 	 	4	 
	 
	 	 	 	 
	Section 5. Representations and Warranties
	 	 	4	 
	 
	 	 	 	 
	Section 6. Undertakings
	 	 	6	 
	 
	 	 	 	 
	Section 7. Further Assurances
	 	 	8	 
	 
	 	 	 	 
	Section 8. Voting Rights; Dividends; Etc.
	 	 	8	 
	 
	 	 	 	 
	Section 9. Intellectual Property Collateral
	 	 	9	 
	 
	 	 	 	 
	Section 10. Insurance
	 	 	10	 
	 
	 	 	 	 
	Section 11. Collateral Agent Appointed Attorney in Fact
	 	 	10	 
	 
	 	 	 	 
	Section 12. Collateral Agent or Secured Parties May Perform
	 	 	10	 
	 
	 	 	 	 
	Section 13. The Collateral Agent’s Duties
	 	 	10	 
	 
	 	 	 	 
	Section 14. Remedies
	 	 	11	 
	 
	 	 	 	 
	Section 15. Indemnity and Expenses
	 	 	12	 
	 
	 	 	 	 
	Section 16. Amendments; Waivers; Additional Collateral Providers; Etc.
	 	 	12	 
	 
	 	 	 	 
	Section 17. Notices, Etc.
	 	 	12	 
	 
	 	 	 	 
	Section 18. Continuing Security Interest; Assignments under the Credit Agreement
	 	 	13	 






i 









 






Security Agreement (AJI)




	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	Section 19. Release; Termination
	 	 	13	 
	 
	 	 	 	 
	Section 20. Execution in Counterparts
	 	 	13	 
	 
	 	 	 	 
	Section 21. Governing Law and Jurisdiction
	 	 	14	 






ii 









 






	 	 	 	 	 
	Schedule 1

	 	-
	 	List of ASI Shares
	 
	 	 	 	 
	Schedule 2

	 	-
	 	List of Real Properties
	 
	 	 	 	 
	Schedule 3-1

	 	-
	 	List of Patents
	 
	 	 	 	 
	Schedule 3-2

	 	-
	 	List of Trademarks
	 
	 	 	 	 
	Schedule 3-3

	 	-
	 	List of Patent and Trademark Applications
	 
	 	 	 	 
	Schedule 4

	 	-
	 	List of Investment Properties
	 
	 	 	 	 
	Exhibit A

	 	-
	 	Form of Document Setting Out Information on
Underlying Transaction (toki gen-in shomei
joho)
	 
	 	 	 	 
	Exhibit B

	 	-
	 	Form of Deed of Assignment (joto shosho)
	 
	 	 	 	 
	Exhibit C

	 	-	 	Form of Request for Consent to
Pledge (shichiken settei doi-iraisho)
	 
	 	 	 	 
	Annex I

	 	 
	 	 






iii 









 






SECURITY AGREEMENT




SECURITY AGREEMENT dated July 27, 2007 made by and between Asyst Japan Inc., a joint stock
company (kabushiki kaisha) under the laws of Japan (the “Collateral Provider”), the financial
institutions listed in Annex I attached hereto (the “Secured Parties”) and KEYBANK NATIONAL
ASSOCIATION as collateral agent (in such capacity, together with any successor collateral agent
appointed pursuant to Section 9.01(b) of the Credit Agreement (as hereinafter defined), (the
“Collateral Agent”) for and on behalf of the Secured Parties.



Preliminary Statements





	(1)	 	Asyst Technologies, Inc., a corporation under the laws of the state of California (the
“Company”), Asyst Shinko, Inc. (“ASI”) and the Collateral Provider, as Borrowers have entered
into a Credit Agreement dated as of July 27, 2007 (said Agreement, as it may hereafter be
amended, amended and restated, supplemented or otherwise modified from time to time, being the
“Credit Agreement”) with, inter alios, the Lenders and the Administrative Agent.






	(2)	 	Pursuant to the Credit Agreement, the Collateral Provider is entering into this Agreement in
order to create in favour of the Secured Parties a security interest in each type of the
Collateral (as hereinafter defined).






	(3)	 	It is a condition precedent to the making of Loans by the Lenders and the issuance of Letters
of Credit by the L/C Issuer under the Credit Agreement, the entry into Secured Hedge
Agreements by the Hedge Banks and the entry into Secured Cash Management Agreements by the
Cash Management Banks from time to time that the Collateral Provider shall have created the
security interests contemplated by this Agreement.






	(4)	 	Terms defined in the Credit Agreement and not otherwise defined in this Agreement are used in
this Agreement as defined in the Credit Agreement. Sections, clauses, paragraphs and Schedules
in italics are references to Sections, clauses, paragraphs and Schedules of this Agreement.





NOW, THEREFORE, in order to induce the Lenders to make Term Loans and Revolving Credit Loans and
the L/C Issuer to issue Letters of Credit under the Credit Agreement and to induce the Hedge Banks
and the Cash Management Banks to enter into Secured Hedge Agreements and Secured Cash Management
Agreements, respectively from time to time, the Collateral Provider hereby agrees with the Secured
Parties as follows:



Section 1.Creation of Security




1.1 Initial creation of security





	 	(a)	 	The Collateral Provider hereby creates in favour of the Secured Parties a first priority
security interest in the form of a pledge (shichiken) in all of the Collateral Provider’s
rights, title and interest in and to the shares of capital stock of (or other ownership or
profit interests in) ASI as described in Schedule 1 (any and all such shares or
interests being the “ASI Shares”).
	 
	 	(b)	 	The Collateral Provider hereby creates in favour of the Collateral Agent on behalf of the
Secured Parties a security interest in the form of a comprehensive mortgage (neteitoken) in
the real properties as described in Schedule 2 (any and all real estate subject to
the security interest created hereunder being the “Real Properties”)




1









 












	 	(c)	 	To the extent permitted by Japanese law, the Collateral Provider hereby creates in favour
of the Secured Parties a first priority security interest in the form of a pledge
(shichiken) in all of the Collateral Provider’s rights, title and interest in and to the
deposit accounts of the Collateral Provider as specified in Schedule 2 to Exhibit C
maintained with the bank specified in Schedule 2 to Exhibit C (the “Account Bank”) (such
deposit accounts being the “Deposit Accounts”).






	 	(d)	 	The Collateral Provider hereby transfers and assigns to the Secured Parties, by way of a
first priority security interest (joto tampoken), all of the Collateral Provider’s rights,
title and interest in and to the following (any and all Patents (as defined below) and
Trademarks (as defined below) being, the “Intellectual Property Collateral”):






	 	(i)	 	all patents as described in Schedule 3-1, other than the
patent whose patent number assigned by the Japan Patent Office is 3285808 (the
“Co-owned Patent”) (any and all patents subject to the security interest created
hereunder being “Patents”); and
	 
	 	(ii)	 	all trademarks as described in Schedule 3-2 (any and all
trademarks subject to the security interest created hereunder being “Trademarks”).





1.2 Subsequent creation of security





The Collateral Provider agrees that upon the creation or acquisition by (or on behalf of)
itself of any properties which are of the type (i) enumerated in clauses (a) through
(d) of Section 1.1, including, without limitation, any Equity Interests in any
entities incorporated in Japan, any deposit or other bank accounts, any real properties located
in Japan and any patents, trademarks and copyrights registered in Japan or filed with the Japan
Patent Office, or (ii) otherwise required under the terms of the Credit Agreement or any other
Loan Document to be pledged or otherwise encumbered for the benefit of the Secured Parties
(including, without limitation, any Material Property), or upon entry into of any Material
Contract, the Collateral Provider will notify the Collateral Agent thereof and promptly
thereafter create in favour of the Secured Parties, a first priority security interest in all of
the Collateral Provider’s rights, title and interest in and to any such properties or under such
contract to the extent that such creation does not result in a breach of or constitute a default
under any agreement to which the Collateral Provider is a party.



1.3 Collateral





	 	(a)	 	All properties which are subject to any security interest created hereunder are herein
collectively called the “Collateral”. The Collateral shall include all proceeds of,
collateral for, income, royalties and other payments now or hereafter due and payable with
respect to any and all of the forgoing Collateral (including, without limitation, proceeds
and collateral that constitute property of the types described in clauses (a)
through (d) of Section 1.1, Section 1.2 and this Section
1.3) and, to the extent not otherwise included, all payments under insurance (whether or
not the Collateral Agent or the Secured Parties is the loss payee thereof), or any
indemnity, warranty or guaranty, payable by reason of loss or damages to or otherwise with
respect to any of the foregoing Collateral. Notwithstanding anything herein to the contrary,
in no event shall Collateral include any lease, license, contract, property rights or
agreement to which the Collateral Provider is a party or any of its rights or interest
thereunder (other than the right to receive payments) if the creation of such security
interest hereunder (i) shall constitute or result in the abandonment, invalidation or
unenforceability of any right, title or interest of the Collateral Provider therein or in a
breach or termination pursuant to the terms of, or a default under, any such lease, license,
contract, property rights or agreement unless the Collateral Provider shall have obtained a
consent or waiver with respect to the Liens created hereunder, or (ii) is prohibited by
applicable law.




2









 












	 	(b)	 	Notwithstanding the foregoing, the term “Collateral” shall not include, and the grant of
a security interest as provided hereunder shall not extend to:






(i) any asset, the granting of a security interest in which would be void or illegal
under any applicable governmental Law, rule or regulation, or pursuant thereto would
result in, or permit the termination of, such asset; or




(ii) any asset subject to any Liens permitted under Section 7.01 of the Credit
Agreement (a “Permitted Lien”) (other than Liens in favour of the Collateral Agent or
the Secured Parties) to the extent that the grant of other Liens on such asset would:




	 	A.	 	result in a breach or violation of, or constitute a default
under, the agreement or instrument governing such Permitted Lien;
	 
	 	B.	 	result in the loss of use of such asset; or
	 
	 	C.	 	permit the holder of such Permitted Lien to terminate the
Grantor’s use of such asset.





Section 2. Perfection of Security





	 	(a)	 	With respect to any Collateral set out under Section 1, upon execution of this
Agreement and subject to satisfaction of the conditions provided in Section 1 or
upon the creation or acquisition or entry into by (or on behalf of) the Collateral Provider
thereof, the Collateral Provider shall at its sole cost and expense, take or cause to be
taken all such procedures as are necessary for the perfection of each of such Collateral,
and take or cause to be taken all further action that may be necessary or reasonably
desired, or that the Collateral Agent or the Secured Parties may reasonably request, for
such purpose. Without limiting the generality of the foregoing, the Collateral Provider
shall, at its sole cost and expense, prepare any and all such documents as are necessary for
the registration or perfection of the security interests in the properties enumerated in
Section 1 above, including without limitation, the Real Properties, or the Patents
and the Trademarks. Without further limiting the foregoing, the Collateral Provider shall,
at its own cost and expense, (i) within 5 days from the Closing Date, deliver to the
Collateral Agent for the rateable benefit of the Secured Parties all share certificates
representing the ASI Shares, (ii) on or prior to the Closing Date, prepare, duly execute and
deliver to the Collateral Agent (I) a deed of mortgage, which also constitutes a document
setting out information on the underlying transaction (toki gen-in shomei joho) for the
mortgage to be registered, with respect to the Real Properties in such form substantially as
shown in Exhibit A and (II) a deed of assignment with respect to the Patents and Trademarks
in such form substantially as shown in Exhibit B (joto shosho) and (iii) within 30 days from
the Closing Date, obtain approval from the Account Bank to pledge over the Deposit Accounts
in such form substantially as shown in Exhibit C (shichiken settei doi-iraisho) after having
the date thereof officially established (kakutei hizuke). Moreover, the Collateral Provider
shall retain a judicial scrivener (shihoushoshi) and patent attorney (benrishi), both of its
choice, to prepare all necessary documents for the registration of the mortgage or
recordation of the assignment of the Intellectual Property Collateral or for the performance
by the Collateral Provider of its obligations relating to the perfection of the security
interests created hereunder
	 
	 	(b)	 	Each party understands that the Collateral Agent’s reasonable cooperation, including,
without limitation, obtaining a power of attorney and other documents to be prepared by the
relevant Secured Party, is necessary for the registration of the mortgage or the assignment
of the Intellectual Property Collateral or for the performance by the Collateral Provider of
its obligations relating to the perfection of the security interests created hereunder.




3









 












	 	(c)	 	The Collateral Agent shall hold the share certificates representing the ASI Shares as
well as any shares of any other entities as referred to in Section 1.2 which are
delivered to it by the Collateral Provider pursuant to clause (a) of this
Section 2 in accordance with the provisions of the Credit Agreement, on behalf of
the Secured Parties.





Section 3. Security for Obligations




This Agreement secures all advances to, and debts, liabilities, obligations, covenants and
duties of, any Foreign Obligor arising under any Loan Document, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising (all such obligations being the “Secured Obligations”).



Section 4. Collateral Provider Remains Liable




Anything herein to the contrary notwithstanding, (a) the Collateral Provider shall remain
liable under the contracts and agreements relating to any Collateral, to the extent set forth
therein to perform all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Collateral Agent or the Secured Parties of
any of the rights hereunder shall not release the Collateral Provider from any of its duties or
obligations under the contracts and agreements relating to any Collateral or in connection with any
Collateral, and (c) no Secured Party shall have any obligation or liability under the contracts and
agreements relating to any Collateral or in connection with any Collateral by reason of this
Agreement or any other Loan Document, nor shall any Secured Party be obligated to perform any of
the obligations or duties of the Collateral Provider thereunder or in connection with any
Collateral or to take any action to collect or enforce any claim for payment assigned hereunder.



Section 5. Representations and Warranties




The Collateral Provider hereby makes the following representations and warranties to the
Collateral Agent and the Secured Parties:




	 	(a)	 	It is the sole, legal and beneficial owner of the Collateral (excluding, for the
avoidance of doubt, any Collateral released under Section 19), free and clear of any
Lien (other than an existing security interest created under the security agreement dated as
of July 13, 2006, and entered into by and between the Collateral Provider and Bank of
America, N.A. as collateral agent and any Permitted Lien), claim, option or right of others,
and except for the security interests created hereunder, and it has not agreed to encumber
or cause or allow to be encumbered any Collateral with any Lien, claim, option or right of
others.
	 
	 	(b)	 	It has not sold or agreed to sell, or otherwise disposed of or agreed to dispose of any
or all of the Collateral.
	 
	 	(c)	 	As of the date of this Agreement and the Closing Date, the total number of the issued and
outstanding shares of capital stock of ASI, is 9,900, 95.1 per cent of which are owned by
the Collateral Provider, and the remaining 4.9 per cent of which are owned by Shinko
Electric Co., Ltd. The ASI Shares, together with the remaining shares have been duly
authorised and validly issued and are fully paid and non-assessable.
	 
	 	(d)	 	As of the date of this Agreement and the Closing Date, none of the equipment of the
Collateral Provider has a book value of $500,000 or more.
	 
	 	(e)	 	As of the date of this Agreement and the Closing Date, all of the investment properties
owned by the Collateral Provider are listed on Schedule 4 and Schedule 5.08(e) to the
Credit Agreement.




4









 












	 	(f)	 	As of the date of this Agreement and the Closing Date, no agreement exists which
constitutes a Material Contract with respect to the Collateral Provider, except for the
agreement listed in Schedule 5.07 to the Credit Agreement.
	 
	 	(g)	 	As of the date of this Agreement and the Closing Date, it has no patents, trademarks, or
service marks registered in Japan, or any patent, trademark or service mark applications
filed with the Japan Patent Office, other than the Patents and the Trademarks, and the
patent and trademark applications listed on Schedules 3-1, 3-2 and
3-3.
	 
	 	(h)	 	As of the date of this Agreement, the Co-owned Patent, which is co-owned by AJI and a
third party, is not a material patent for the current business of AJI.
	 
	 	(i)	 	As of the date of this Agreement and the Closing Date, it owns no real property other
than the real properties listed on Schedule 2.
	 
	 	(j)	 	This Agreement creates in favour of the Secured Parties a valid first priority security
interest securing the payment of the Secured Obligations in the Real Property upon its
execution and such interest is perfected upon registration of the comprehensive mortgage,
and this Agreement creates a valid and perfected first priority security interest securing
the payment of the Secured Obligations in the case of the Deposit Accounts, upon obtaining
approval from the Account Bank to pledge, in the case of the ASI Shares, upon the delivery
of the share certificates representing the ASI Shares to the Collateral Agent, and in the
case of the Patents and Trademarks, upon the recordation of the assignment thereof to the
Secured Parties.
	 
	 	(k)	 	It is a corporation duly incorporated and validly existing under the laws of Japan, has
the corporate power and authority to own its assets and to transact its business, and is
duly qualified under the laws of Japan.
	 
	 	(l)	 	The execution and performance by itself of this Agreement have been duly authorised by
all necessary corporate action and do not and will not (i) require any consent or approval
of its shareholders, (ii) contravene the articles of incorporation or any other constitutive
documents of itself, (iii) violate any provision of any law, rule, or regulation, or (iv)
result in a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease, or instrument to which it is a party or by which it
or its properties may be bound or affected.
	 
	 	(m)	 	This Agreement is the legal, valid, and binding obligation of the Collateral Provider,
enforceable in accordance with its respective terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, and other similar laws
affecting creditors’ rights generally.
	 
	 	(n)	 	No authorisation or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required for (i) the
creation of the security interests created hereunder or for the execution, delivery or
performance of this Agreement by the Collateral Provider, (ii) the perfection or maintenance
of any security interest created hereby), except for the application to the Registry Office
for registration of the mortgage over the Real Properties and the application to the Japan
Patent Office for transfer of the Intellectual Property Collateral by way of security
interest, or (iii) the exercise by the Collateral Agent of any voting or other rights
provided for in this Agreement or the remedies in respect of any Collateral pursuant to this
Agreement.
	 
	 	(o)	 	Subject to Section 1.3 (b), the creation of a security interest hereunder in any
lease, license, contract, property rights or agreement to which the Collateral Provider is a
party or any of the Collateral Provider’s rights thereunder (i) does not and will not
constitute or result in the abandonment, invalidation or unenforceability of any right,
title or interest of the Collateral Provider therein or in a breach or termination pursuant
to the terms of, or a default under, any




5









 






	 	 	 	such lease, license, contract, property rights or agreement or (ii) does not and will not
violate any law.






	 	(p)	 	None of the properties listed on Schedules has been or is likely to be adjudged invalid
or unenforceable in whole or part and all patents, trademarks, patent or trademark
applications, contracts and agreements, accounts receivable, Equity Interests, insurance
policies listed on Schedules are valid and enforceable.
	 
	 	(q)	 	None of the Collateral Provider and the properties listed on Schedules is or is likely to
be subject to any outstanding consent, settlement, decree, order, injunction, judgment or
ruling restricting the use of such properties.
	 
	 	(r)	 	The value of Real Properties of the Collateral Provider provided to the Collateral Agent
in connection with this Agreement was measured by the Collateral Provider or any other
Person in good faith and in a commercially reasonable manner and, to the best knowledge and
belief of the Collateral Provider, reasonably reflects the fair market value thereof.
	 
	 	(s)	 	All information provided by the Collateral Provider to the Secured Parties through the
Collateral Agent in connection with this Agreement, including the information set out in
Schedules, is true and accurate in all material respects and comprehensive, and there is no
matter which renders or could render any of such information untrue, inaccurate or
misleading in any respect.
	 
	 	(t)	 	Under the laws of Japan, there is no requirement that the Collateral Agent or any of the
Secured Parties qualify to do business in Japan or comply with the requirement of any
foreign lender statute or to pay any Tax in order to carry out the transactions contemplated
by, receive the benefits of, or enforce the provisions of this Agreement or the other Loan
Documents or the documents provided for therein, nor will the Collateral Agent or any of the
Secured Parties be subject to any other type of taxation in Japan solely as the result of
the performance of such transactions or the enforcement of any rights or remedies granted
under this Agreement or any of the other Loan Documents.
	 
	 	(u)	 	ASI has not adopted any internal rule (including its articles of incorporation), entered
into any agreement with any third party, or taken any action whatsoever, which may restrict
the disposition of the ASI Shares in connection with the enforcement of the pledge created
hereunder.





Section 6. Undertakings




So long as any Secured Obligations remain unpaid, in addition to the matters which the Company
is required to cause, or prohibited from permitting, each of its Subsidiaries to do under the
Credit Agreement, the Collateral Provider hereby covenants to do the following, or not to do the
following unless necessary consent is obtained from the relevant Persons in accordance with the
provisions of the Credit Agreement.




	 	(a)	 	It will warrant and defend and cause others to warrant and defend its rights, title and
interest in and to any of the Collateral for the benefit of the Secured Parties against any
claims and demands of all other Persons whomsoever.
	 
	 	(b)	 	It will continue to be the sole, legal and beneficial owner of each of the Collateral
(excluding, for the avoidance of doubt, any Collateral released under Section 19),
free and clear of any Lien, claim, option or right of others, except for the security
interests created hereunder.




6









 












	 	(c)	 	It will comply and cause others to comply with all the provisions of any applicable law
in order to establish and maintain any security interest created hereunder as a valid,
perfected, first priority security interest.
	 
	 	(d)	 	It will pay all reasonable costs, and all taxes and governmental charges in connection
with the preparation, execution or amendment of this Agreement and the creation and
perfection of or amendment to any security interest created hereunder (including, without
limitation, registration fees incurred in connection with the registration of any security
interest created hereunder and the recordation of any change made to any matters recorded on
the real estate registry, the patent registry or the trademark registry and reasonable fees
and expenses of the Collateral Agent’s or the Secured Parties’ counsel relating thereto),
and promptly pay or procure the payment of all fees and taxes and all other reasonable
expenses whatsoever in respect of any of the Collateral, so that any security interest
created hereunder shall at all times be wholly preserved at the cost of the Collateral
Provider and without expense to the Collateral Agent or any Secured Party.
	 
	 	(e)	 	Unless otherwise permitted under the Credit Agreement, it will not cause or allow any
Lien, claim, option or right of others whatsoever to be created, incurred, placed or imposed
upon any of its properties, including any Collateral.
	 
	 	(f)	 	Unless otherwise permitted under the Credit Agreement, it will not sell or otherwise
dispose of, or cause to be sold or otherwise disposed of, any of its properties, including
any Collateral, or any share or interest in any of the Collateral.
	 
	 	(g)	 	It will notify or cause to be notified the Collateral Agent forthwith if any order or
notice of provisional attachment, provisional attachment for the purpose of assuring
collection of taxes or public imposts or attachment with respect to any of its properties,
including the Collateral, is dispatched.
	 
	 	(h)	 	It will not make or cause to be made any major alteration to any of the Collateral.
	 
	 	(i)	 	Upon completion of the registration of any patent or trademark with the Japan Patent
Office in its name or upon the filing of an application for patent or trademark in its name
with the Japan Patent Office, it will promptly notify the Collateral Agent thereof in
writing, and in the case of the registration of a patent or trademark, will create a
security interest in all of the Collateral Provider’s rights, title and interest in and to
such registered patent or trademark in favour of the Secured Parties and perfect or cause to
be perfected the security interest so created, in such manner as the Collateral Agent
determines to be necessary and appropriate.
	 
	 	(j)	 	It will permit the Collateral Agent, its employees or Subagents (as defined in
Section 13(b)) at all reasonable times and subject to at least twenty-four (24)
hours prior notice to survey and/or inspect any of the Collateral, give or cause to be given
all reasonable assistance in connection with such survey and inspection, and make or cause
to be made all such repairs as such survey or inspection shall reveal to be necessary to
enable the relevant Collateral to comply with the requirements hereof.
	 
	 	(k)	 	It will notify or cause to be notified the Collateral Agent forthwith of any accident to
any of the Collateral which results in material damage to such Collateral.
	 
	 	(l)	 	It will supply or cause to be supplied to the Collateral Agent, upon request by the
Collateral Agent, full information regarding any of the Collateral.
	 
	 	(m)	 	It will keep or cause to be kept proper books of account in respect of any of the
Collateral, and as and when the Collateral Agent may so require, ensure that such books are
made available for inspection by the Collateral Agent.




7









 












	 	(n)	 	It will not assign any right, duty, obligation or liability hereunder.
	 
	 	(o)	 	Unless otherwise permitted under the Credit Agreement, and otherwise than the issue of
shares for the purpose of or pursuant to a stock split or reverse stock split or any other
means under which it does not cause the Collateral Provider’s issued share capital to change
under the Company Law of Japan or for the purpose of or pursuant to and followed by a merger
or consolidation permitted under Section 7.04 of the Credit Agreement, it will not issue or
permit ASI to issue any new Equity Interest.
	 
	 	(p)	 	It will make its reasonable efforts to, on demand of the Collateral Agent, obtain consent
from the other co-owner of the Co-owned Patent to the assignment of its interest therein to
the Secured Parties by way of security under this Agreement, and then assign by way of
security such interest to the Secured Parties, if such action is deemed by the Secured
Parties to be necessary for the preservation or protection of any of the rights of the
Secured Parties under this Agreement or any other Loan Agreement.
	 
	 	(q)	 	Concurrently with the delivery by the Company of the financial statements referred to in
Sections 6.01(a) and (b) of the Credit Agreement, or, if at any other time, upon the
reasonable request of the Collateral Agent, it will obtain approval from the Account Bank to
pledge over the Deposit Accounts in such form substantially as shown in Exhibit C (shichiken
settei doi-iraisho) after having the date thereof officially established (kakutei hizuke)
and send such approval to the Collateral Agent.





Section 7. Further Assurances





	 	(a)	 	The Collateral Provider agrees that from time to time, at the expense of the Collateral
Provider, the Collateral Provider will promptly execute and deliver, or otherwise
authenticate, all further instruments and documents, and take all further action that may be
necessary or reasonably desired, or that the Collateral Agent or the Secured Parties may
reasonably request, in order to create, perfect and protect any security interest created or
purported to be created by the Collateral Provider hereunder or to enable the Collateral
Agent or the Secured Parties to exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
	 
	 	(b)	 	The Collateral Provider will furnish to the Collateral Agent from time to time statements
and schedules further identifying and describing the Collateral and such other reports in
connection with any Collateral as the Collateral Agent may reasonably request, all in
reasonable detail.





Section 8. Voting Rights; Dividends; Etc.





	 	(a)	 	So long as no Specified Default shall have occurred and be continuing:






	 	(i)	 	The Collateral Provider shall be entitled to exercise any and all
voting and other consensual rights pertaining to any Equity Interests which are
subject to the security interest created hereunder for any purpose.
	 
	 	(ii)	 	The Collateral Provider shall be entitled to receive and retain any
and all dividends, interest and other distributions paid in respect of any Equity
Interests which are subject to the security interest created hereunder if and to
the extent that the payment thereof is not otherwise prohibited by the terms of
the Loan Documents; provided, that any and all such dividends, interest
and distributions shall be Collateral subject to any other applicable provisions
of this Agreement.




8









 












	 	(b)	 	Upon the occurrence and during the continuance of a Specified Default, upon notice by the
Collateral Agent:






	 	(i)	 	All rights of the Collateral Provider (I) to exercise or refrain from
exercising the voting and other consensual rights that it would otherwise be
entitled to exercise pursuant to Section 8(a)(i) shall cease and (II) to
receive the dividends, interest and other distributions that it would otherwise be
authorised to receive and retain pursuant to Section 8(a)(ii) shall
automatically cease, and all such rights shall thereupon become vested in the
Collateral Agent and the Secured Parties, which shall thereupon have the sole
right as against the Collateral Provider to exercise or refrain from exercising
such voting and other consensual rights and to receive and hold as Collateral such
dividends, interest and other distributions.
	 
	 	(ii)	 	All dividends, interest and other distributions that are received by
the Collateral Provider contrary to the provisions of paragraph (i) of
this Section 8(b) shall be received in custody for the benefit of the
Secured Parties, shall be segregated from other funds of the Collateral Provider
and shall be forthwith paid over to the Collateral Agent as Collateral in the same
form as so received (with any necessary endorsement).





For purposes of this Agreement, “Specified Default” means the occurrence and continuance of (i) an
Event of Default or (ii) a Default under clause (f) or (g) of Section 8.01 of the Credit
Agreement.



Section 9. Intellectual Property Collateral





	 	(a)	 	With respect to each item of its Intellectual Property Collateral, the Collateral
Provider agrees to take, at its expense, all necessary steps to (i) maintain the validity
and enforceability of any Intellectual Property Collateral and maintain any Intellectual
Property Collateral in full force and effect, and (ii) pursue the registration and
maintenance of each patent or trademark now or hereafter included in the Intellectual
Property Collateral, or each of the patent or trademark applications listed in Schedule
3-3 or hereafter notified to the Collateral Agent, including, without limitation, the
payment of required fees and taxes, the filing of responses to office actions issued by any
governmental authorities, the filing of applications for renewal or extension, the payment
of maintenance fees and the participation in interference, re-examination, opposition,
cancellation, infringement and misappropriation proceedings. The Collateral Provider shall
not, without obtaining consent of the relevant Person in accordance with the Credit
Agreement, discontinue use of or otherwise abandon any Intellectual Property Collateral, or
abandon any application for a patent or trademark filed with the Japan Patent Office, unless
the loss thereof could not reasonably be expected to have a Material Adverse Effect, in
which case, the Collateral Provider will give prompt notice of any such abandonment to the
Collateral Agent.
	 
	 	(b)	 	The Collateral Provider shall take all steps which it or the Collateral Agent deems
reasonable and appropriate under the circumstances to preserve and protect each item of the
Intellectual Property Collateral, including, without limitation, maintaining the quality of
any and all products or services used or provided in connection with any of the Trademarks,
consistent with the quality of the products and services as of the date hereof, and taking
all steps necessary to ensure that all licensed users of any of the Trademarks use such
consistent standards of quality and singly or jointly with the Collateral Agent and the
Secured Parties, as the Collateral Agent instructs, defending or bringing any infringement
or other proceedings with respect to any Intellectual Property Collateral.




9









 











Section 10. Insurance




The Collateral Provider will, at its own expense, maintain or procure that the Company
maintains, insurance with respect to the material properties and assets other than the shares of
capital stock of ASI of the Collateral Provider in such amounts, against such risks, in such form
and with such insurers, as shall be satisfactory to the Collateral Agent from time to time. Each
policy of such insurance shall name the Collateral Agent, on behalf of the Secured Parties, as an
additional insured or loss payee, as the case may be, as provided under the Credit Agreement.



Section 11. Collateral Agent Appointed Attorney in Fact




The Collateral Provider hereby irrevocably appoints the Collateral Agent the Collateral
Provider’s attorney- in-fact, with full authority in the place and stead of the Collateral Provider
and in the name of the Collateral Provider or otherwise, from time to time, upon the occurrence and
during the continuance of a Specified Default, in the Collateral Agent’s discretion, to take any
action and to execute any instrument that the Collateral Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation:




	 	(a)	 	to obtain and adjust insurance required to be paid to the Collateral Agent pursuant to
Section 10;
	 
	 	(b)	 	to ask for, demand, collect, recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the Collateral; and
	 
	 	(c)	 	to receive, indorse and collect any drafts or other instruments or documents in
connection with clause (a) or (b) above.





Section 12. Collateral Agent or Secured Parties May Perform




If the Collateral Provider fails to perform any agreement contained herein, the Collateral
Agent or the Secured Parties may, as either deems necessary to protect any security interest
created hereunder in any of the Collateral or to protect the value thereof, but without any
obligation to do so and without notice, itself perform, or cause performance of, such agreement,
and the expenses of the Collateral Agent or the Secured Parties incurred in connection therewith
shall be payable by the Collateral Provider under Section 15.



Section 13. The Collateral Agent’s Duties





	 	(a)	 	The powers conferred on the Collateral Agent hereunder are solely to protect the Secured
Parties’ interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the exercising of reasonable care with respect to the Collateral in
its possession and the accounting for moneys actually received by it hereunder, the
Collateral Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not any Secured Party has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to preserve rights
against any parties or any other rights pertaining to any Collateral. The Collateral Agent
shall be deemed to have exercised reasonable care in the custody and preservation of any
Collateral in its possession if it takes such action for that purpose as the Collateral
Provider reasonably requests in writing at times other than upon the occurrence and during
the continuance of any Specified Default, but failure of the Collateral Agent to comply with
any such request at any time shall not in itself be deemed a failure to exercise reasonable
care.




10









 












	 	(b)	 	Anything contained herein to the contrary notwithstanding, the Collateral Agent may from
time to time, when the Collateral Agent deems it to be necessary, appoint one or more
subagents (each a “Subagent”) for the Collateral Agent hereunder with respect to all or any
part of the Collateral. In the event that the Collateral Agent so appoints any Subagent with
respect to any Collateral, (i) such Subagent shall automatically be vested, in addition to
the Collateral Agent, with all rights, powers, privileges, interests and remedies of the
Collateral Agent hereunder with respect to such Collateral, and (ii) the term “Collateral
Agent,” when used herein in relation to any rights, powers, privileges, interests and
remedies of the Collateral Agent with respect to such Collateral, shall include such
Subagent.





Section 14. Remedies




If any Specified Default shall have occurred and be continuing:




	 	(a)	 	The Collateral Agent or the Secured Parties may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a Secured Party upon default under the applicable law and also
may: (i) require the Collateral Provider to, and the Collateral Provider hereby agrees that
it will at its expense and upon request of the Collateral Agent forthwith, assemble all or
part of the Collateral as directed by the Collateral Agent and make it available to the
Collateral Agent at a place and time to be designated by the Collateral Agent that is
reasonably convenient to both parties; (ii) without notice except as specified below, sell
the Collateral or any part thereof in one or more parcels at public or private sale, at any
of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery,
and upon such other terms as the Collateral Agent may deem commercially reasonable; (iii)
occupy any premises owned or leased by the Collateral Provider where the Collateral or any
part thereof is assembled or located for a reasonable period in order to effectuate its
rights and remedies hereunder or under law, without obligation to the Collateral Provider in
respect of such occupation; and (iv) exercise any and all rights and remedies of the
Collateral Provider under or in connection with the Collateral, or otherwise in respect of
the Collateral. The Collateral Provider agrees that, to the extent notice of sale shall be
required by law, at least ten days’ notice to such Collateral Provider of the time and place
of any public sale or the time after which any private sale is to be made shall constitute
reasonable notification. The Collateral Agent or the Secured Parties shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.
	 
	 	(b)	 	Any cash held by or on behalf of the Collateral Agent or the Secured Parties and all cash
proceeds received by or on behalf of the Collateral Agent or the Secured Parties in respect
of any sale of, collection from, or other realisation upon all or any part of the Collateral
may, in the discretion of the Collateral Agent or the Secured Parties, be held by the
Collateral Agent as collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Collateral Agent or the Secured Parties pursuant to
Section 15) in whole or in part by the Collateral Agent for the rateable benefit of
the Secured Parties against, all or any part of the Secured Obligations, in the manner set
forth under Section 8.03 of the Credit Agreement. Any surplus of such cash or cash proceeds
held by or on the behalf of the Collateral Agent or the Secured Parties and remaining after
payment in full of all the Secured Obligations shall be paid over to the Collateral Provider
or to whomsoever may be lawfully entitled to receive such surplus.






	 	(c)	 	All payments received by the Collateral Provider in respect of the Collateral shall be
received in custody for the benefit of the Secured Parties, shall be segregated from other
funds of the Collateral Provider and shall be forthwith paid over to the Collateral Agent in
the same form as so received (with any necessary endorsement).




11









 











Section 15. Indemnity and Expenses





	 	(a)	 	The Collateral Provider agrees to indemnify, defend and save and hold harmless each
Secured Party and each of their Affiliates and their respective officers, directors,
employees, agents and advisors (each, an “Indemnified Party”) from and against, and shall
pay on demand, any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of or in
connection with or resulting from this Agreement or any Collateral (including, without
limitation, enforcement of this Agreement, any breach or alleged breach of any of the
representations, warranties or covenants, or agreements made by the Collateral Provider
hereunder), except to the extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have resulted from
such Indemnified Party’s gross negligence or wilful misconduct.






	 	(b)	 	The Collateral Provider will upon demand pay to the Collateral Agent or the Secured
Parties the amount of any and all taxes and all reasonable expenses, including, without
limitation, the reasonable fees and expenses of its counsel and of any experts and agents,
that the Collateral Agent or the Secured Parties may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or operation of, or
the sale of, collection from or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Collateral Agent or the Secured Parties
hereunder or (iv) the failure by the Collateral Provider to perform or observe any of the
provisions hereof.





Section 16. Amendments; Waivers; Additional Collateral Providers; Etc.




No amendment or waiver of any provision of this Agreement, and no consent to the departure by
the Collateral Provider herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Collateral Agent and the Secured Parties in accordance with the
provisions of the Credit Agreement, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No failure on the part of the
Collateral Agent or any Secured Party to exercise, and no delay in exercising any right hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right.



Section 17. Notices, Etc.




Except in the case of notices and other communications expressly permitted to be given by
telephone (and except as provided in Section 10.02(b) of the Credit Agreement), all notices and
other communications provided for hereunder shall be either (i) in writing (including telegraphic,
telecopier or telex communication) and delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows: in the case of the Collateral Agent
or Secured Parties, addressed to it at its address specified in the Credit Agreement and, in the
case of the Collateral Provider, addressed to it at its address set out opposite the Collateral
Provider’s name on the signature page of this Agreement; or, as to any party, at such other address
as shall be designated by such party in a written notice to the other parties. Notices sent by hand
or overnight courier service, or mailed by certified or registered mail, shall be deemed to have
been given when received; notices sent by telecopier shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the recipient). Notices
delivered through electronic communications to the extent provided in Section 10.02(b) of the
Credit Agreement shall be effective as provided in such subsection. Delivery by telecopier of an
executed counterpart of any amendment or waiver



12









 





of any provision of this Agreement or Schedule hereto shall be effective as delivery of an original
executed counterpart thereof.



Section 18. Continuing Security Interest; Assignments under the Credit Agreement




This Agreement shall create a continuing security interest in each of the Collateral and shall
(a) remain in full force and effect until the latest of (i) the payment in full in cash of the
Secured Obligations, (ii) the Maturity Date and (iii) the termination or expiration of all
Commitments and all Letters of Credit, (b) be binding upon the Collateral Provider, its successors
and assigns and (c) inure, together with the rights and remedies of the Collateral Agent hereunder,
to the benefit of the Secured Parties and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), any Secured Party may assign
or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Commitment, the Loans owing to it and the
Note or Notes, if any, held by it) and other Loan Documents to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect thereof granted to such
Secured Party herein or otherwise, in each case as provided in Section 10.06 of the Credit
Agreement.



Section 19. Release; Termination





	 	(a)	 	Upon any Disposition of any item of the Collateral in accordance with the terms of the
Loan Documents (other than sales of Inventory in the ordinary course of business), the
Collateral Agent and the Secured Parties will, at the Collateral Provider’s expense, execute
and deliver to the Collateral Provider (without recourse or representation or warranty) such
documents as the Collateral Provider shall reasonably request to evidence the release of
such item of the Collateral from the security interests created hereby; provided,
that (i) at the time of such request and such release no Specified Default shall have
occurred and be continuing, (ii) the Collateral Provider shall have delivered to the
Collateral Agent, at least five Business Days prior to the date of the proposed release, a
written request for release describing the item of the Collateral and the terms of the sale,
lease, transfer or other disposition in reasonable detail, including, without limitation,
the price thereof and any expenses in connection therewith, together with a form of release
for execution by the Secured Parties and Collateral Agent and a certificate of the
Collateral Provider to the effect that the transaction is in compliance with the Loan
Documents and as to such other matters as the Collateral Agent or the Secured Parties may
reasonably request and (iii) the proceeds of any such sale, lease, transfer or other
disposition required to be applied, or any payment to be made in connection therewith, in
accordance with Section 8.03 of the Credit Agreement shall, to the extent so required, be
paid or made to, or in accordance with the instructions of, the Administrative Agent when
and as required under Section 8.03 of the Credit Agreement.






	 	(b)	 	Upon the latest of (i) the payment in full in cash of the Secured Obligations, (ii) the
Maturity Date and (iii) the termination or expiration of all Commitments and all Letters of
Credit, the security interests created hereby shall terminate and all rights to the
Collateral shall revert to the Collateral Provider. Upon any such termination, the Secured
Parties and Collateral Agent will, at the Collateral Provider’s expense, execute and deliver
to the Collateral Provider (without recourse or representation or warranty) such documents
as the Collateral Provider shall reasonably request to evidence such termination.




13









 











Section 20. Execution in Counterparts




This Agreement may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier
shall be effective as delivery of an original executed counterpart of this Agreement.



Section 21. Governing Law and Jurisdiction




This Agreement shall be governed by, and construed in accordance with, the laws of Japan. Any
disputes or controversies between the parties arising out of or in connection with the
interpretation or performance of this Agreement shall be subject to the non-exclusive jurisdiction
of the Tokyo District Court.



This Agreement has been entered into as of the date stated at the beginning of this Agreement.



14









 






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23









 










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24









 






Exhibit B




Form of Deed of Assignment




DEED OF ASSIGNMENT




Assignees:



Address: [      ]

Name:     [      ]

Address: [      ]

Name:     [      ]

Address: [      ]

Name:     [      ]  ...




      We, the undersigned Assignor, hereby confirm that we assigned to you, the Assignee, the
Japanese patent rights identified below. We hereby consent to your filing unilaterally an
application for recordation of the assignment.



     Identification of Patent Rights:


Patent Nos.: [      ]




Assignor:





			
	      Address:	 	6-23, Shin-Yokohama 2-chome, Kohoku-ku,

Yokohama-shi, Kanagawa, Japan





     Name: Asyst Japan Inc. ()



     Dated this day of                     , 2007



     Representative Director:                      (seal)



25









 





DEED OF ASSIGNMENT




Assignees:



Address: [      ]

Name:     [      ]

Address: [      ]

Name:     [      ]

Address: [      ]

Name:     [      ]  ...




     We, the undersigned Assignor, hereby confirm that we assigned to you, the Assignee, the
Japanese trademark rights identified below. We hereby consent to your filing unilaterally an
application for recordation of the assignment.



     Trademark Registration Nos.: [      ]



     Dated this day of                     , 2007



Assignor:





			
	      Address:	 	6-23, Shin-Yokohama 2-chome, Kohoku-ku,

Yokohama-shi, Kanagawa, Japan





     Name: Asyst Japan Inc. ()



Representative Director:                      (seal)




26









 








Exhibit C




Form of Request for Consent to Pledge




                    , 2007




[Name of Account Bank]

[Address of Account Bank]




Attention: [Name of responsible department]




Dear Sirs,



We request your approval of the following and inform you by this letter that, pursuant to the terms
of the Security Agreement dated July 27, 2007, (the “Security Agreement”) between Asyst Japan Inc.
as collateral provider, KeyBank National Association as collateral agent (the “Collateral Agent”)
and KeyBank National Association and the other secured parties listed on Schedule 1 hereto
(collectively, the “Secured Parties”), we have created a security interest in the form of pledge
(shichiken) in favour of the Secured Parties on all of our rights, title and interest in
and to each of our deposit accounts maintained with you which are specified in Schedule 2 hereto
(the “Deposit Accounts”).



Unless you receive contrary instructions from the Collateral Agent, we hereby irrevocably authorise
you to pay any and all amounts from time to time credited to the Deposit Accounts to the Collateral
Agent to be applied toward the payment of the Secured Obligations (as defined in the Security
Agreement) then due.



We would appreciate it if you could send all necessary documents or correspondences for the Secured
Parties to the Collateral Agent.



The terms of this Request for Consent to Pledge may not be altered.




	 	 	 	 	 	 	 
	 	 	Yours faithfully,	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST JAPAN INC.	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:
	 	Tetsuo Yamashita	 	 
	 

	 	Title:
	 	Representative Director
	 	 






27









 






	 	 	 	 	 	 	 
	 	 	Approved and consented to:	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:
	 	[      ]	 	 
	 

	 	Title:
	 	[       ]
	 	 






cc: KeyBank National Association, as Collateral Agent




[kakutei hizuke]




28









 








Schedule 1

List of Secured Parties Other than KeyBank National Association

[list other Secured Parties]




29









 








Schedule 2

Deposit Accounts




Account Bank: [Name of Account Bank]




Account Type: [Description of account], Account Number: [number]




30









 






ASYST JAPAN INC.




Kaneko Dai-2 Building, 7th Floor,

6-23, Shin-Yokohama 2-chome,

Kohoku-ku, Yokohama,

Kanagawa, Japan 222-0033

Fax No.: 045-474-8731




	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	Title:
	 	 






 









 





	 	 	 	 	 	 	 	 	 
	[address]	 	KEYBANK NATIONAL ASSOCIATION as the 

Collateral Agent and a Secured Party	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	Title:
	 	 






 









 






	 	 	 	 	 	 	 	 	 
	[address]	 	[Name of the Secured Party] as a Secured Party	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	Title:
	 	 






 









 






EXHIBIT G-2-B




Dated July 27, 2007




ASYST SHINKO, INC.




as Collateral Provider




and




Financial Institutions Listed in Annex I




as Secured Parties




KEYBANK NATIONAL ASSOCIATION




as Collateral Agent for the Secured Parties




SECURITY AGREEMENT




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	Section 1.
	 	Creation of Security

	 	 	1	 
	 	 	 
	 	 	 	 
	Section 2.
	 	Perfection of Security

	 	 	3	 
	 	 	 
	 	 	 	 
	Section 3.
	 	Security for Obligations

	 	 	4	 
	 	 	 
	 	 	 	 
	Section 4.
	 	Collateral Provider Remains Liable

	 	 	4	 
	 	 	 
	 	 	 	 
	Section 5.
	 	Representations and Warranties

	 	 	4	 
	 	 	 
	 	 	 	 
	Section 6.
	 	Undertakings

	 	 	6	 
	 	 	 
	 	 	 	 
	Section 7.
	 	Further Assurances

	 	 	8	 
	 	 	 
	 	 	 	 
	Section 8.
	 	Voting Rights; Dividends; Etc

	 	 	8	 
	 	 	 
	 	 	 	 
	Section 9.
	 	Intellectual Property Collateral

	 	 	9	 
	 	 	 
	 	 	 	 
	Section 10.
	 	Insurance

	 	 	9	 
	 	 	 
	 	 	 	 
	Section 11.
	 	Collateral Agent Appointed Attorney in Fact

	 	 	9	 
	 	 	 
	 	 	 	 
	Section 12.
	 	Collateral Agent or Secured Parties May Perform

	 	 	10	 
	 	 	 
	 	 	 	 
	Section 13.
	 	The Collateral Agent’s Duties

	 	 	10	 
	 	 	 
	 	 	 	 
	Section 14.
	 	Remedies

	 	 	10	 
	 	 	 
	 	 	 	 
	Section 15.
	 	Indemnity and Expenses

	 	 	11	 
	 	 	 
	 	 	 	 
	Section 16.
	 	Amendments; Waivers; Additional Collateral Providers; Etc

	 	 	11	 
	 	 	 
	 	 	 	 
	Section 17.
	 	Notices, Etc

	 	 	12	 
	 	 	 
	 	 	 	 
	Section 18.
	 	Continuing Security Interest; Assignments under the Credit Agreement

	 	 	12	 






i









 






Security Agreement (AJI)




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	Section 19.
	 	Release; Termination

	 	 	12	 
	 	 	 
	 	 	 	 
	Section 20.
	 	Execution in Counterparts

	 	 	13	 
	 	 	 
	 	 	 	 
	Section 21.
	 	Governing Law and Jurisdiction

	 	 	13	 






ii









 






	 	 	 	 	 
	Schedule 1

	 	-
	 	List of Equity Interest
	 
	Schedule 2-1

	 	-
	 	List of Patents
	 
	Schedule 2-2

	 	-
	 	List of Trademarks
	 
	Schedule 2-3

	 	-
	 	List of Patent and Trademark Applications
	 
	Exhibit A

	 	-
	 	Form of Deed of Assignment (joto shosho)
	 
	Exhibit B

	 	-
	 	Form of Request for Consent to
Pledge (shichiken settei doi-iraisho)
	 
	Annex I

	 	 
	 	 







iii









 





SECURITY AGREEMENT



SECURITY AGREEMENT dated July 27, 2007 made by and between Asyst Shinko, Inc., a joint stock
company (kabushiki kaisha) under the laws of Japan, (the “Collateral Provider”) having its
registered office at 100, Takegahana-cho, Ise, Mie, Japan the financial institutions listed in
Annex I attached hereto (the “Secured Parties”) and KEYBANK NATIONAL ASSOCIATION as collateral
agent (in such capacity, together with any successor collateral agent appointed pursuant to Section
9.01(b) of the Credit Agreement (as hereinafter defined), (the “Collateral Agent”) for and on
behalf of the Secured Parties.




Preliminary Statements





	(1)	 	Asyst Technologies, Inc., a corporation under the laws of the state of California (the
“Company”), Asyst Japan Inc. and the Collateral Provider, as Borrowers have entered into a
Credit Agreement dated as of July 27, 2007 (said Agreement, as it may hereafter be amended,
amended and restated, supplemented or otherwise modified from time to time, being the “Credit
Agreement”) with, inter alios, the Lenders and the Administrative Agent.
	 
	(2)	 	Pursuant to the Credit Agreement, the Collateral Provider is entering into this Agreement in
order to create in favour of the Secured Parties a security interest in each type of the
Collateral (as hereinafter defined).
	 
	(3)	 	It is a condition precedent to the making of Loans by the Lenders and the issuance of Letters
of Credit by the L/C Issuer under the Credit Agreement, the entry into Secured Hedge
Agreements by the Hedge Banks and the entry into Secured Cash Management Agreements by the
Cash Management Banks from time to time that the Collateral Provider shall have created the
security interests contemplated by this Agreement.
	 
	(4)	 	Terms defined in the Credit Agreement and not otherwise defined in this Agreement are used in
this Agreement as defined in the Credit Agreement. Sections, clauses, paragraphs and Schedules
in italics are references to Sections, clauses, paragraphs and Schedules of this Agreement.




NOW, THEREFORE, in order to induce the Lenders to make Term Loans and Revolving Credit Loans and
the L/C Issuer to issue Letters of Credit under the Credit Agreement and to induce the Hedge Banks
and the Cash Management Banks to enter into Secured Hedge Agreements and Secured Cash Management
Agreements, respectively from time to time, the Collateral Provider hereby agrees with the Secured
Parties as follows:




Section 1.Creation of Security




1.1 Initial creation of security





	 	(a)	 	The Collateral Provider hereby creates in favour of the Secured Parties a first priority
security interest in the form of a pledge (shichiken) in all of the Collateral Provider’s
rights, title and interest in and to the shares of capital stock of (or other ownership or
profit interests in) Asyst Shinko Ireland, Ltd. and Asyst Shinko China from among the
foreign subsidiaries described in Schedule 1 (all such foreign subsidiaries
together, the “Foreign ASI Subsidiaries”)(any and all such shares or interests being the
“ASI Equity Interests”) promptly after the Collateral Provider causes the secured parties
under the security agreement dated as of November 13, 2006, and





1









 






	 	 	 	entered into by and between the Collateral Provider and Bank of America, N.A. as
collateral agent (the “Existing Security Agreement”) to release the existing security
interest in the ASI Equity created under the Existing Security Agreement.
	 
	 	(b)	 	The Collateral Provider hereby transfers and assigns to the Secured Parties, by way of a
first priority security interest (joto tampoken), all of the Collateral Provider’s rights,
title and interest in and to the following (any and all Patents (as defined below) and
Trademarks (as defined below) being, the “Intellectual Property Collateral”):






	 	(i)	 	all patents as described in Schedule 2-1, other than the patent
whose patent number assigned by the Japan Patent Office is 3002206 (the “Co-owned
Patent”) (any and all patents subject to the security interest created hereunder being
“Patents”); and
	 
	 	(ii)	 	all trademarks as described in Schedule 2-2 (any and all trademarks
subject to the security interest created hereunder being “Trademarks”).






	 	(c)	 	To the extent permitted by Japanese law, the Collateral Provider hereby creates in
favour of the Secured Parties a first priority security interest in the form of a pledge
(shichiken) in all of the Collateral Provider’s rights, title and interest in and to the
deposit accounts of the Collateral Provider as specified in Schedule 2 to Exhibit B
maintained with the bank specified in Exhibit B (the “Account Bank”) (such deposit accounts
being the “Deposit Accounts”).





1.2 Subsequent creation of security



The Collateral Provider agrees that upon the creation or acquisition by (or on behalf of)
itself of any properties which are of the type (i) enumerated in clauses (a) and through (c) of
Section 1.1, including, without limitation, any Equity Interests not covered by clause
(a) of Section 1.1 or any other entities, any deposit or other bank accounts, and any
patents, trademarks and copyrights registered in Japan or filed with the Japan Patent Office, or
(ii) otherwise required under the terms of the Credit Agreement or any other Loan Document to be
pledged or otherwise encumbered for the benefit of the Secured Parties (including, without
limitation, any Material Property), or upon entry into of any Material Contract, the Collateral
Provider will notify the Collateral Agent thereof and promptly thereafter create in favour of the
Secured Parties, a first priority security interest in all of the Collateral Provider’s rights,
title and interest in and to any such properties or under such contract to the extent that such
creation does not result in a breach of or constitute a default under any agreement to which the
Collateral Provider is a party.



1.3 Collateral





	 	(a)	 	All properties which are subject to any security interest created hereunder are herein
collectively called the “Collateral.” The Collateral shall include all proceeds of,
collateral for, income, royalties and other payments now or hereafter due and payable with
respect to any and all of the forgoing Collateral (including, without limitation, proceeds
and collateral that constitute property of the types described in clauses (a) through (c) of
Section 1.1, Section 1.2 and this Section 1.3) and, to the extent
not otherwise included, all payments under insurance (whether or not the Collateral Agent is
the loss payee thereof), or any indemnity, warranty or guaranty, payable by reason of loss
or damages to or otherwise with respect to any of the foregoing Collateral. Notwithstanding
anything herein to the contrary, in no event shall Collateral include any lease, license,
contract, property rights or agreement to which the Collateral Provider is a party or any of
its rights or interest thereunder (other than the right to receive payments) if the creation
of such security interest hereunder (i) shall constitute or result in the abandonment,
invalidation or





2









 






	 	 	 	unenforceability of any right, title or interest of the Collateral Provider therein or in
a breach or termination pursuant to the terms of, or a default under, any such lease,
license, contract, property rights or agreement unless the Collateral Provider shall have
obtained a consent or waiver with respect to the Liens created hereunder, or (ii) is
prohibited by applicable law.
	 
	 	(b)	 	Notwithstanding the foregoing, the term “Collateral” shall not include, and the grant of a
security interest as provided hereunder shall not extend to:






	 	(i)	 	The ASI Equity Interests to the extent the grant of a security interest would:






	 	A.	 	constitute a violation of a valid and enforceable restriction
in favour of a third party on such grant, unless and until any required
consents shall have been obtained;
	 
	 	B.	 	give any other party to such contract, instrument, license or
other document a valid and enforceable right to terminate its obligations
thereunder; or
	 
	 	C.	 	violate the organizational documents of, or any governmental
Law, rule or regulation, applicable to the Foreign ASI Subsidiaries;






	 	(ii)	 	any asset, the granting of a security interest in which would be void or
illegal under any applicable governmental Law, rule or regulation, or pursuant thereto
would result in, or permit the termination of, such asset; or
	 
	 	(iii)	 	any asset subject to any Liens permitted under Section 7.01 of the Credit
Agreement (a “Permitted Lien”) (other than Liens in favour of the Collateral Agent or
the Secured Parties) to the extent that the grant of other Liens on such asset would:






	 	A.	 	result in a breach or violation of, or constitute a default
under, the agreement or instrument governing such Permitted Lien;
	 
	 	B.	 	result in the loss of use of such asset; or
	 
	 	C.	 	permit the holder of such Permitted Lien to terminate the
Grantor’s use of such asset.





Section 2. Perfection of Security





	 	(a)	 	With respect to any Collateral set out under Section 1, upon execution of this Agreement
and subject to satisfaction of the conditions provided in Section 1 or upon the creation or
acquisition or entry into by (or on behalf of) the Collateral Provider thereof, the
Collateral Provider shall at its sole cost and expense, take or cause to be taken all such
procedures as are necessary for the perfection of each of such Collateral, and take or cause
to be taken all further action that may be necessary or reasonably desired, or that the
Collateral Agent the Secured Parties may reasonably request, for such purpose. Without
limiting the generality of the foregoing, the Collateral Provider shall, at its sole cost
and expense, on or prior to the Closing Date, prepare, duly execute and deliver to the
Collateral Agent any and all such documents as are necessary for the registration or
perfection of the security interests in the properties enumerated in Section 1
above, including without limitation, a deed of assignment with respect to the Patents and
the Trademarks in such form substantially as shown in Exhibit A (joto shosho) and within 30
days from the Closing Date, obtain approval from the Account Bank to pledge over the
Deposit Accounts in such form substantially as shown in Exhibit B (shichiken settei
doi-iraisho) after having the date thereof officially established (kakutei hizuke).





3









 






	 	(b)	 	Each party understands that the Collateral Agent’s reasonable cooperation, including,
without limitation, obtaining a power of attorney and other documents to be prepared by the
relevant Secured Party, is necessary for the registration of the assignment of the
Intellectual Property Collateral by way of a security interest or for the performance by the
Collateral Provider of its obligations relating to the perfection of the security interests
created hereunder. Moreover, the Collateral Provider shall retain a patent attorney
(benrishi), of its choice, to prepare all necessary documents for recordation of the
assignment of the Intellectual Property Collateral or for the performance by the Collateral
Provider of its obligations relating to the perfection of the security interests created
hereunder.





Section 3. Security for Obligations



This Agreement secures all advances to, and debts, liabilities, obligations, covenants and
duties of, any Foreign Obligor arising under any Loan Document, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising (all such obligations being the “Secured Obligations”).




Section 4. Collateral Provider Remains Liable



Anything herein to the contrary notwithstanding, (a) the Collateral Provider shall remain
liable under the contracts and agreements relating to any Collateral, to the extent set forth
therein to perform all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Collateral Agent or the Secured Parties of
any of the rights hereunder shall not release the Collateral Provider from any of its duties or
obligations under the contracts and agreements relating to any Collateral or in connection with any
Collateral, and (c) no Secured Party shall have any obligation or liability under the contracts and
agreements relating to any Collateral or in connection with any Collateral by reason of this
Agreement or any other Loan Document, nor shall any Secured Party be obligated to perform any of
the obligations or duties of the Collateral Provider thereunder or in connection with any
Collateral or to take any action to collect or enforce any claim for payment assigned hereunder.




Section 5. Representations and Warranties



The Collateral Provider hereby makes the following representations and warranties to the
Collateral Agent and the Secured Parties:





	 	(a)	 	It is the sole, legal and beneficial owner of the Collateral (excluding, for the
avoidance of doubt, any Collateral released under Section 19), free and clear of any
Lien (other than an existing security interest created under the security agreement dated as
of November 13, 2006, and entered into by and between the Collateral Provider and Bank of
America, N.A. as collateral agent and any Permitted Lien), claim, option or right of others,
and except for the security interests created hereunder, and it has not agreed to encumber
or cause or allow to be encumbered any Collateral with any Lien, claim, option or right of
others.
	 
	 	(b)	 	It has not sold or agreed to sell, or otherwise disposed of or agreed to dispose of any
or all of the Collateral.
	 
	 	(c)	 	As of the date of this Agreement, none of the equipment of the Collateral Provider has a
book value of $500,000 or more.
	 
	 	(d)	 	As of the date of this Agreement, it owns no investment
properties other than those in shares in the Foreign ASI Subsidiaries listed on Schedule1 and Schedule 5.08(e) to the
Credit Agreement.





4









 






	 	(e)	 	As of the date of this Agreement, no agreement exists which constitutes a Material
Contract with respect to the Collateral Provider, except for the agreement listed in
Schedule 5.07 to the Credit Agreement.
	 
	 	(f)	 	As of the date of this Agreement, it has no patents, trademarks, or service marks,
registered in Japan, or any patent, trademark or service mark applications, filed with the
Japan Patent Office, other than the Patents and the Trademarks, and the patent and trademark
applications listed on Schedules 2-1, 2-2 and 2-3.
	 
	 	(g)	 	As of the date of this Agreement, it owns no real property.
	 
	 	(h)	 	A valid and perfected first priority security interest will be created in favour of the
Secured Parties securing the payment of the Secured Obligations, in the case of the Deposit
Accounts, upon obtaining approval from the Account Bank to pledge and, in the case of the
Patents and Trademarks, upon the recordation of assignment thereof to the Secured Parties.
	 
	 	(i)	 	It is a corporation duly incorporated and validly existing under the laws of Japan; has
the corporate power and authority to own its assets and to transact its business, and is
duly qualified under the laws of Japan.
	 
	 	(j)	 	The execution and performance by itself of this Agreement have been duly authorised by
all necessary corporate action and do not and will not (i) require any consent or approval
of its shareholders, (ii) contravene the articles of incorporation or any other constitutive
documents of itself, (iii) violate any provision of any law, rule, or regulation, or (iv)
result in a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease, or instrument to which it is a party or by which it
or its properties may be bound or affected.
	 
	 	(k)	 	This Agreement is the legal, valid, and binding obligation of the Collateral Provider,
enforceable in accordance with its respective terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other similar laws
affecting creditors’ rights generally.
	 
	 	(l)	 	No authorisation or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required for (i) the
creation of the security interests created hereunder or for the execution, delivery or
performance of this Agreement by the Collateral Provider, (ii) the perfection or maintenance
of any security interest created hereby (including the first priority nature of such
security interest), except for the application to the Japan Patent Office for transfer of
the Intellectual Property Collateral by way of security interest, or (iii) the exercise by
the Collateral Agent of any voting or other rights provided for in this Agreement or the
remedies in respect of any Collateral pursuant to this Agreement.
	 
	 	(m)	 	Subject to Section 1.3 (b), the creation of a security interest hereunder in any
lease, license, contract, property rights or agreement to which the Collateral Provider is a
party or any of the Collateral Provider’s rights thereunder (i) does not and will not
constitute or result in the abandonment, invalidation or unenforceability of any right,
title or interest of the Collateral Provider therein or in a breach or termination pursuant
to the terms of, or a default under, any such lease, license, contract, property rights or
agreement or (ii) does not and will not violate any law.
	 
	 	(n)	 	None of the properties listed on Schedules has been or is likely to be adjudged
invalid or unenforceable in whole or part and all patents, trademarks, patent or trademark
applications, contracts and agreements, accounts receivable, Equity Interests, insurance
policies listed on Schedules are valid and enforceable.





5









 






	 	(o)	 	None of the Collateral Provider and the properties listed on Schedules is or is
likely to be subject to any outstanding consent, settlement, decree, order, injunction,
judgment or ruling restricting the use of such properties.
	 
	 	(p)	 	All information provided by the Collateral Provider to the Secured Parties through the
Collateral Agent in connection with this Agreement, including the information set out in
Schedules is true and accurate in all material respects and comprehensive, and there
is no matter which renders or could render any of such information untrue, inaccurate or
misleading in any respect.
	 
	 	(q)	 	Under the laws of Japan, there is no requirement that the Collateral Agent or any of the
Secured Parties qualify to do business in Japan or comply with the requirement of any
foreign lender statute or to pay any Tax in order to carry out the transactions contemplated
by, receive the benefits of, or enforce the provisions of this Agreement or the other Loan
Documents or the documents provided for therein, nor will the Collateral Agent or any of the
Secured Parties be subject to any other type of taxation in Japan solely as the result of
the performance of such transactions or the enforcement of any rights or remedies granted
under this Agreement or any of the other Loan Documents.





Section 6. Undertakings



So long as any Secured Obligations remain unpaid, in addition to the matters which the Company
is required to cause, or prohibited from permitting, each of its Subsidiaries to do under the
Credit Agreement, the Collateral Provider hereby covenants to do the following, or not to do the
following unless necessary consent is obtained from the relevant Persons in accordance with the
provisions of the Credit Agreement.





	 	(a)	 	It will warrant and defend and cause others to warrant and defend its rights, title and
interest in and to any of the Collateral for the benefit of the Secured Parties against any
claims and demands of all other Persons whomsoever.
	 
	 	(b)	 	It will continue to be the sole, legal and beneficial owner of each of the Collateral
(excluding, for the avoidance of doubt, any Collateral released under Section 19),
free and clear of any Lien, claim, option or right of others, except for the security
interests created hereunder.
	 
	 	(c)	 	It will comply and cause others to comply with all the provisions of any applicable law
in order to establish and maintain any security interest created hereunder as a valid,
perfected, first priority security interest.
	 
	 	(d)	 	It will pay all reasonable costs, and all taxes and governmental charges in connection
with the preparation, execution or amendment of this Agreement and the creation and
perfection of or amendment to any security interest created hereunder (including, without
limitation, registration fees incurred in connection with the registration of any security
interest created hereunder and the recordation of any change made to any matters recorded on
the patent registry or the trademark registry and reasonable fees and expenses of the
Collateral Agent’s or the Secured Parties’ counsel relating thereto), and promptly pay or
procure the payment of all fees and taxes and all other reasonable expenses whatsoever in
respect of any of the Collateral, so that any security interest created hereunder shall at
all times be wholly preserved at the cost of the Collateral Provider and without expense to
the Collateral Agent or any Secured Party.
	 
	 	(e)	 	Unless otherwise permitted under the Credit Agreement, it will not cause or allow any
Lien, claim, option or right of others whatsoever to be created, incurred, placed or imposed
upon any of its properties, including any Collateral.





6









 






	 	(f)	 	Unless otherwise permitted under the Credit Agreement, it will not sell or otherwise
dispose of, or cause to be sold or otherwise disposed of, any of its properties, including
any Collateral, or any share or interest in any of the Collateral.
	 
	 	(g)	 	It will notify or cause to be notified the Collateral Agent forthwith if any order or
notice of provisional attachment, provisional attachment for the purpose of assuring
collection of taxes or public imposts or attachment with respect to any of its properties,
including the Collateral, is dispatched.
	 
	 	(h)	 	It will not make or cause to be made any major alteration to any of the Collateral.
	 
	 	(i)	 	Upon completion of the registration of any patent or trademark with the Japan Patent
Office in its name or upon the filing of an application for patent or trademark in its name
with the Japan Patent Office, it will promptly notify the Collateral Agent thereof in
writing, and in the case of the registration of a patent or trademark, will create a
security interest in all of the Collateral Provider’s rights, title and interest in and to
such registered patent or trademark in favour of the Secured Parties and perfect or cause to
be perfected the security interest so created, in such manner as the Collateral Agent
determines to be necessary and appropriate.
	 
	 	(j)	 	It will permit the Collateral Agent, its employees or Subagents (as defined in
Section 13 (b)) at all reasonable times and subject to at least twenty-four
(24) hours prior notice to survey and/or inspect any of the Collateral, give or cause to be
given all reasonable assistance in connection with such survey and inspection, and make or
cause to be made all such repairs as such survey or inspection shall reveal to be necessary
to enable the relevant Collateral to comply with the requirements hereof.
	 
	 	(k)	 	It will notify or cause to be notified the Collateral Agent forthwith of any accident to
any of the Collateral which results in material damage to such Collateral.
	 
	 	(l)	 	It will supply or cause to be supplied to the Collateral Agent, upon request by the
Collateral Agent, full information regarding any of the Collateral.
	 
	 	(m)	 	It will keep or cause to be kept proper books of account in respect of any of the
Collateral, and as and when the Collateral Agent may so require, ensure that such books are
made available for inspection by the Collateral Agent.
	 
	 	(n)	 	It will not assign any right, duty, obligation or liability hereunder.
	 
	 	(o)	 	Unless otherwise permitted under the Credit Agreement and otherwise than issue of shares
for the purpose of or pursuant to a stock split or reverse stock split or any other means
under which it does not cause the Collateral Provider’s issued share capital to change under
the Company Law of Japan or for the purpose of or pursuant to and followed by a merger or
consolidation permitted under Section 7.04 of the Credit Agreement, it will not issue any
new Equity Interest.
	 
	 	(p)	 	It will make its reasonable efforts to, on demand of the Collateral Agent, obtain consent
from the other co-owner of the Co-owned Patent to the assignment of its interest therein to
the Secured Parties by way of security under this Agreement, and then assign by way of
security such interest to the Secured Parties, if such action is deemed by the Secured
Parties to be necessary for the preservation or protection of any of the rights of the
Secured Parties under this Agreement or any other Loan Agreement.
	 
	 	(q)	 	Concurrently with the delivery by the Company of the financial statements referred to in
Sections 6.01(a) and (b) of the Credit Agreement, or, if at any other time, upon the
reasonable request of the Collateral Agent, it will obtain approval from the Account Bank to
pledge over the Deposit Accounts in such form substantially as shown in Exhibit C (shichiken
settei doi-iraisho) after





7









 






having the date thereof officially established (kakutei hizuke) and send such approval to
the Collateral Agent.



Section 7. Further Assurances





	 	(a)	 	The Collateral Provider agrees that from time to time, at the expense of the Collateral
Provider, the Collateral Provider will promptly execute and deliver, or otherwise
authenticate, all further instruments and documents, and take all further action that may be
necessary or reasonably desired, or that the Collateral Agent or the Secured Parties may
reasonably request, in order to create, perfect and protect any security interest created or
purported to be created by the Collateral Provider hereunder or to enable the Collateral
Agent or the Secured Parties to exercise and enforce their rights and remedies hereunder
with respect to any Collateral.
	 
	 	(b)	 	The Collateral Provider will furnish to the Collateral Agent from time to time statements
and schedules further identifying and describing the Collateral and such other reports in
connection with any Collateral as the Collateral Agent may reasonably request, all in
reasonable detail.





Section 8. Voting Rights; Dividends; Etc.





	 	(a)	 	So long as no Specified Default shall have occurred and be continuing:






	 	(i)	 	The Collateral Provider shall be entitled to exercise any and all voting and
other consensual rights pertaining to any Equity Interests which are subject to the
security interest created hereunder for any purpose.
	 
	 	(ii)	 	The Collateral Provider shall be entitled to receive and retain any and all
dividends, interest and other distributions paid in respect of any Equity Interests
which are subject to the security interest created hereunder if and to the extent that
the payment thereof is not otherwise prohibited by the terms of the Loan Documents;
provided, that any and all such dividends, interest and distributions shall be
Collateral subject to any other applicable provisions of this Agreement.






	 	(b)	 	Upon the occurrence and during the continuance of a Specified Default, upon notice by the
Collateral Agent:






	 	(i)	 	All rights of the Collateral Provider (I) to exercise or refrain from
exercising the voting and other consensual rights that it would otherwise be entitled to
exercise pursuant to Section 8(a)(i) shall cease and (II) to receive the
dividends, interest and other distributions that it would otherwise be authorised to
receive and retain pursuant to Section 8(a)(ii) shall automatically cease, and
all such rights shall thereupon become vested in the Collateral Agent and the Secured
Parties, which shall thereupon have the sole right as against the Collateral Provider to
exercise or refrain from exercising such voting and other consensual rights and to
receive and hold as Collateral such dividends, interest and other distributions.
	 
	 	(ii)	 	All dividends, interest and other distributions that are received by the
Collateral Provider contrary to the provisions of paragraph (i) of this
Section 8(b) shall be received in custody for the benefit of the Secured
Parties, shall be segregated from other funds of the Collateral Provider and shall be
forthwith paid over to the Collateral Agent as Collateral in the same form as so
received (with any necessary endorsement).




For purposes of this Agreement, “Specified Default” means the occurrence and continuance of (i) an
Event of Default or (ii) a Default under clause (f) or (g) of Section 8.01 of the Credit Agreement.




8









 





Section 9. Intellectual Property Collateral





	 	(a)	 	With respect to each item of its Intellectual Property Collateral, the Collateral
Provider agrees to take, at its expense, all necessary steps to (i) maintain the validity
and enforceability of any Intellectual Property Collateral and maintain any Intellectual
Property Collateral in full force and effect, and (ii) pursue the registration and
maintenance of each patent or trademark now or hereafter included in the Intellectual
Property Collateral, or each of the patent or trademark applications listed in Schedule
2-3 or hereafter notified to the Collateral Agent, including, without limitation, the
payment of required fees and taxes, the filing of responses to office actions issued by any
governmental authorities, the filing of applications for renewal or extension, the payment
of maintenance fees and the participation in interference, re-examination, opposition,
cancellation, infringement and misappropriation proceedings. The Collateral Provider shall
not, without obtaining consent of the relevant Person in accordance with the Credit
Agreement, discontinue use of or otherwise abandon any Intellectual Property Collateral, or
abandon any application for a patent or trademark filed with the Japan Patent Office, unless
the loss thereof could not reasonably be expected to have a Material Adverse Effect, in
which case, the Collateral Provider will give prompt notice of any such abandonment to the
Collateral Agent.
	 
	 	(b)	 	The Collateral Provider shall take all steps which it or the Collateral Agent deems
reasonable and appropriate under the circumstances to preserve and protect each item of the
Intellectual Property Collateral, including, without limitation, maintaining the quality of
any and all products or services used or provided in connection with any of the Trademarks,
consistent with the quality of the products and services as of the date hereof, and taking
all steps necessary to ensure that all licensed users of any of the Trademarks use such
consistent standards of quality and singly or jointly with the Collateral Agent and the
Secured Parties, as the Collateral Agent instructs, defending or bringing any infringement
or other proceedings with respect to any Intellectual Property Collateral.





Section 10. Insurance



The Collateral Provider will, at its own expense, maintain insurance with respect to the
material properties and assets in such amounts, against such risks, in such form and with such
insurers, as shall be satisfactory to the Collateral Agent from time to time. Each policy of such
insurance shall name the Collateral Agent, on behalf of the Secured Parties, as an additional
insured or loss payee, as the case may be, as provided under the Credit Agreement.




Section 11. Collateral Agent Appointed Attorney in Fact



The Collateral Provider hereby irrevocably appoints the Collateral Agent the Collateral
Provider’s attorney- in-fact, with full authority in the place and stead of the Collateral Provider
and in the name of the Collateral Provider or otherwise, from time to time, upon the occurrence and
during the continuance of a Specified Default, in the Collateral Agent’s discretion, to take any
action and to execute any instrument that the Collateral Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation:





	 	(a)	 	to obtain and adjust insurance required to be paid to the Collateral Agent pursuant
to Section 10;
	 
	 	(b)	 	to ask for, demand, collect, recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the Collateral; and





9









 






	 	(c)	 	to receive, indorse and collect any drafts or other instruments or documents in
connection with clause (a) or (b) above.





Section 12. Collateral Agent or Secured Parties May Perform



If the Collateral Provider fails to perform any agreement contained herein, the Collateral
Agent or the Secured Parties may, as either deems necessary to protect any security interest
created hereunder in any of the Collateral or to protect the value thereof, but without any
obligation to do so and without notice, itself perform, or cause performance of, such agreement,
and the expenses of the Collateral Agent or the Secured Parties incurred in connection therewith
shall be payable by the Collateral Provider under Section 15.




Section 13. The Collateral Agent’s Duties





	 	(a)	 	The powers conferred on the Collateral Agent hereunder are solely to protect the Secured
Parties’ interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the exercising of reasonable care with respect to the Collateral in
its possession and the accounting for moneys actually received by it hereunder, the
Collateral Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not any Secured Party has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to preserve rights
against any parties or any other rights pertaining to any Collateral. The Collateral Agent
shall be deemed to have exercised reasonable care in the custody and preservation of any
Collateral in its possession if it takes such action for that purpose as the Collateral
Provider reasonably requests in writing at times other than upon the occurrence and during
the continuance of any Specified Default, but failure of the Collateral Agent to comply with
any such request at any time shall not in itself be deemed a failure to exercise reasonable
care.
	 
	 	(b)	 	Anything contained herein to the contrary notwithstanding, the Collateral Agent may from
time to time, when the Collateral Agent deems it to be necessary, appoint one or more
subagents (each a “Subagent”) for the Collateral Agent hereunder with respect to all or any
part of the Collateral. In the event that the Collateral Agent so appoints any Subagent with
respect to any Collateral, (i) such Subagent shall automatically be vested, in addition to
the Collateral Agent, with all rights, powers, privileges, interests and remedies of the
Collateral Agent hereunder with respect to such Collateral, and (ii) the term “Collateral
Agent,” when used herein in relation to any rights, powers, privileges, interests and
remedies of the Collateral Agent with respect to such Collateral, shall include such
Subagent.





Section 14. Remedies



If any Specified Default shall have occurred and be continuing:





	 	(a)	 	The Collateral Agent or the Secured Parties may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a Secured Party upon default under the applicable law and also
may: (i) require the Collateral Provider to, and the Collateral Provider hereby agrees that
it will at its expense and upon request of the Collateral Agent forthwith, assemble all or
part of the Collateral as directed by the Collateral Agent and make it available to the
Collateral Agent at a place and time to be designated by the Collateral Agent that is
reasonably convenient to both parties; (ii) without notice except as specified below, sell
the Collateral or any part thereof in one or more parcels at





10









 






	 	 	 	public or private sale, at any of the Collateral Agent’s offices or elsewhere, for cash,
on credit or for future delivery, and upon such other terms as the Collateral Agent may
deem commercially reasonable; (iii) occupy any premises owned or leased by the Collateral
Provider where the Collateral or any part thereof is assembled or located for a reasonable
period in order to effectuate its rights and remedies hereunder or under law, without
obligation to the Collateral Provider in respect of such occupation; and (iv) exercise any
and all rights and remedies of the Collateral Provider under or in connection with the
Collateral, or otherwise in respect of the Collateral. The Collateral Provider agrees
that, to the extent notice of sale shall be required by law, at least ten days’ notice to
such Collateral Provider of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification. The Collateral
Agent or the Secured Parties shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given.
	 
	 	(b)	 	Any cash held by or on behalf of the Collateral Agent or the Secured Parties and all cash
proceeds received by or on behalf of the Collateral Agent or the Secured Parties in respect
of any sale of, collection from, or other realisation upon all or any part of the Collateral
may, in the discretion of the Collateral Agent or the Secured Parties, be held by the
Collateral Agent as collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Collateral Agent or the Secured Parties pursuant to
Section 15) in whole or in part by the Collateral Agent for the rateable benefit of
the Secured Parties against, all or any part of the Secured Obligations, in the manner set
forth under Section 8.03 of the Credit Agreement. Any surplus of such cash or cash proceeds
held by or on the behalf of the Collateral Agent or the Secured Parties and remaining after
payment in full of all the Secured Obligations shall be paid over to the Collateral Provider
or to whomsoever may be lawfully entitled to receive such surplus.
	 
	 	(c)	 	All payments received by the Collateral Provider in respect of the Collateral shall be
received in custody for the benefit of the Secured Parties, shall be segregated from other
funds of the Collateral Provider and shall be forthwith paid over to the Collateral Agent in
the same form as so received (with any necessary endorsement).





Section 15. Indemnity and Expenses





	 	(a)	 	The Collateral Provider agrees to indemnify, defend and save and hold harmless each
Secured Party and each of their Affiliates and their respective officers, directors,
employees, agents and advisors (each, an “Indemnified Party”) from and against, and shall
pay on demand, any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of or in
connection with or resulting from this Agreement or any Collateral (including, without
limitation, enforcement of this Agreement, any breach or alleged breach of any of the
representations, warranties or covenants, or agreements made by the Collateral Provider
hereunder), except to the extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have resulted from
such Indemnified Party’s gross negligence or wilful misconduct.
	 
	 	(b)	 	The Collateral Provider will upon demand pay to the Collateral Agent or the Secured
Parties the amount of any and all taxes and all reasonable expenses, including, without
limitation, the reasonable fees and expenses of its counsel and of any experts and agents,
that the Collateral Agent or the Secured Parties may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or operation of, or
the sale of, collection from or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Collateral Agent or the Secured Parties
hereunder or (iv) the failure by the Collateral Provider to perform or observe any of the
provisions hereof.





11









 





Section 16. Amendments; Waivers; Additional Collateral Providers; Etc.



No amendment or waiver of any provision of this Agreement, and no consent to the departure by
the Collateral Provider herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Collateral Agent or the Secured Parties in accordance with the provisions
of the Credit Agreement, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No failure on the part of the Collateral
Agent or any Secured Party to exercise, and no delay in exercising any right hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude
any other or further exercise thereof or the exercise of any other right.




Section 17. Notices, Etc.



Except in the case of notices and other communications expressly permitted to be given by
telephone (and except as provided in Section 10.02(b) of the Credit Agreement), all notices and
other communications provided for hereunder shall be either (i) in writing (including telegraphic,
telecopier or telex communication) and delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows: in the case of the Collateral Agent
or the Secured Parties, addressed to it at its address specified in the Credit Agreement and, in
the case of the Collateral Provider, addressed to it at its address set out opposite the Collateral
Provider’s name on the signature page of this Agreement; or, as to any party, at such other address
as shall be designated by such party in a written notice to the other parties. Notices sent by hand
or overnight courier service, or mailed by certified or registered mail, shall be deemed to have
been given when received; notices sent by telecopier shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the recipient). Notices
delivered through electronic communications to the extent provided in Section 10.02(b) of the
Credit Agreement shall be effective as provided in such subsection. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this Agreement or Schedule
hereto shall be effective as delivery of an original executed counterpart thereof.




Section 18. Continuing Security Interest; Assignments under the Credit Agreement



This Agreement shall create a continuing security interest in each of the Collateral and shall
(a) remain in full force and effect until the latest of (i) the payment in full in cash of the
Secured Obligations, (ii) the Maturity Date and (iii) the termination or expiration of all
Commitments and all Letters of Credit, (b) be binding upon the Collateral Provider, its successors
and assigns and (c) inure, together with the rights and remedies of the Collateral Agent hereunder,
to the benefit of the Secured Parties and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), any Secured Party may assign or
otherwise transfer all or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Commitment, the Loans owing to it and the
Note or Notes, if any, held by it) and other Loan Documents to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect thereof granted to such
Secured Party herein or otherwise, in each case as provided in Section 10.06 of the Credit
Agreement.




Section 19. Release; Termination





	 	(a)	 	Upon any Disposition of any item of the Collateral in accordance with the terms of the
Loan Documents (other than sales of Inventory in the ordinary course of business), the
Secured Parties and the Collateral Agent will, at the Collateral Provider’s expense, execute
and deliver to the Collateral Provider (without recourse or representation or warranty) such
documents as the Collateral Provider shall reasonably request to evidence the release of
such item of the Collateral





12









 






	 	 	 	from the security interests created hereby; provided, that (i) at the time of such
request and such release no Specified Default shall have occurred and be continuing, (ii)
the Collateral Provider shall have delivered to the Collateral Agent, at least five
Business Days prior to the date of the proposed release, a written request for release
describing the item of the Collateral and the terms of the sale, lease, transfer or other
disposition in reasonable detail, including, without limitation, the price thereof and any
expenses in connection therewith, together with a form of release for execution by the
Secured Parties and the Collateral Agent and a certificate of the Collateral Provider to
the effect that the transaction is in compliance with the Loan Documents and as to such
other matters as the Collateral Agent or the Secured Parties may reasonably request and
(iii) the proceeds of any such sale, lease, transfer or other disposition required to be
applied, or any payment to be made in connection therewith, in accordance with Section
8.03 of the Credit Agreement shall, to the extent so required, be paid or made to, or in
accordance with the instructions of, the Administrative Agent when and as required under
Section 8.03 of the Credit Agreement.
	 
	 	(b)	 	Upon the latest of (i) the payment in full in cash of the Secured Obligations, (ii) the
Maturity Date and (iii) the termination or expiration of all Commitments and all Letters of
Credit, the security interests created hereby shall terminate and all rights to the
Collateral shall revert to the Collateral Provider. Upon any such termination, the Secured
Parties and the Collateral Agent will, at the Collateral Provider’s expense, execute and
deliver to the Collateral Provider (without recourse or representation or warranty) such
documents as the Collateral Provider shall reasonably request to evidence such termination.





Section 20. Execution in Counterparts



This Agreement may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier
shall be effective as delivery of an original executed counterpart of this Agreement.




Section 21. Governing Law and Jurisdiction



This Agreement shall be governed by, and construed in accordance with, the laws of Japan. Any
disputes or controversies between the parties arising out of or in connection with the
interpretation or performance of this Agreement shall be subject to the non-exclusive jurisdiction
of the Tokyo District Court.




This Agreement has been entered into as of the date stated at the beginning of this Agreement.




13









 





Exhibit A




Form of Deed of Assignment




DEED OF ASSIGNMENT



Assignees:



Address: [         ]



Name:       [       ]



Address: [         ]



Name:       [       ]



Address: [         ]



Name:       [       ]  ... 




     We, the undersigned Assignor, hereby confirm that we assigned to you, the Assignee, the
Japanese patent rights identified in the attachment to this deed. We hereby consent to your filing
unilaterally an application for recordation of the assignment.



     Dated this ___day of
                    , 2007


Assignor:




     Address: 100, Takegahana-cho, Ise, Mie, Japan



     Name: Asyst Shinko, Inc. 



     Representative Director:                     (seal)


(Attachment omitted)




25









 








DEED OF ASSIGNMENT



Assignee:



Address: [         ]



Name:       [       ]



Address: [         ]



Name:       [       ]



Address: [         ]



Name:       [       ]  ... 




     We, the undersigned Assignor, hereby confirm that we assigned to you, the Assignee, the
Japanese trademark rights identified below. We hereby consent to your filing unilaterally an
application for recordation of the assignment.



          Trademark Registration Nos.: [       ]




     Dated this ___day of
                    , 2007


Assignor:




     Address: 100, Takegahana-cho, Ise, Mie, Japan



     Name: Asyst Shinko, Inc.



     Representative Director:                     (seal)



26









 





Exhibit B




Form of Request for Consent to Pledge




                    , 2007




Citibank, N.A., Tokyo branch

Akasaka Park Building 5F

5-2-20, Akasaka, Minato-ku

Tokyo 107-6105




Attention: Japan Foreign Subsidiaries, Corporate Banking Division




Dear Sirs,



We request your approval of the following and inform you by this letter that, pursuant to the terms
of the Security Agreement dated July 27, 2007 (the “Security Agreement”) between Asyst Shinko, Inc.
as collateral provider, and KeyBank National Association as collateral agent (the “Collateral
Agent”) and KeyBank National Association and the other secured parties listed on Schedule 1 hereto
(collectively, the “Secured Parties”), we have created a security interest in the form of pledge
(shichiken) in favour of the Secured Parties on all of our rights, title and interest in
and to each of our accounts maintained with you which are specified on Schedule 2 hereto (the
“Deposit Accounts”).



Unless you receive contrary instructions from the Collateral Agent, we hereby irrevocably authorise
you to pay any and all amounts from time to time credited to the Deposit Accounts to the Collateral
Agent to be applied toward the payment of the Secured Obligations (as defined in the Security
Agreement) then due.



We would appreciate it if you could send all necessary documents or correspondences for the Secured
Parties to the Collateral Agent.



The terms of this Request for Consent to Pledge may not be altered.




	 	 	 	 	 	 	 
	 	 	Yours faithfully,	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST SHINKO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	By:
	 	 

Hitoshi Kawano
	 	 
	 

	 	Title:
	 	Representative Director	 	 
	 	 	Approved and consented to:	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	By:
	 	 

[       ]
	 	 
	 

	 	Title:
	 	[       ]	 	 






cc:       KeyBank National Association, as Collateral Agent




[kakutei hizuke]





27









 








Schedule 1

List of Secured Parties Other than KeyBank National Association

[list other Secured Parties]




28









 





ASYST SHINKO, INC.




	 	 	 	 	 	 	 
	Shiba NBF Tower,
	 	 	 	 	 	 
	1-30, Shibadaimon 1-chome,
	 	 	 	 	 	 
	Minato-ku, Tokyo, 105-0012
	 	 	 	 	 	 
	Japan
	 	 	 	 	 	 
	Fax No.: +81-3-3436-3245

	 	By	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	By:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION as the	 	 
	[address]	 	Collateral Agent and a Secured Party	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	[Name of the Secured Party] as a Secured Party	 	 
	[address]
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 






 









 




EXHIBIT
G-2-C



Dated July 26, 2007




ASYST TECHNOLOGIES, INC.




as Collateral Provider




and




Financial Institutions Listed in Annex I




as Secured Parties

and




KEYBANK NATIONAL ASSOCIATION




as Collateral Agent for the Secured Parties




SECURITY AGREEMENT




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	Section 1.

	 	Creation of Security
	 	 	1	 
	 
	 	 	 	 	 	 
	Section 2.

	 	Perfection of Security
	 	 	2	 
	 
	 	 	 	 	 	 
	Section 3.

	 	Security for Obligations
	 	 	3	 
	 
	 	 	 	 	 	 
	Section 4.

	 	Collateral Provider Remains Liable
	 	 	3	 
	 
	 	 	 	 	 	 
	Section 5.

	 	Representations and Warranties
	 	 	3	 
	 
	 	 	 	 	 	 
	Section 6.

	 	Undertakings
	 	 	5	 
	 
	 	 	 	 	 	 
	Section 7.

	 	Further Assurances
	 	 	6	 
	 
	 	 	 	 	 	 
	Section 8.

	 	Voting Rights; Dividends; Etc.	 	 	7	 
	 
	 	 	 	 	 	 
	Section 9.

	 	Intellectual Property Collateral
	 	 	7	 
	 
	 	 	 	 	 	 
	Section 10.

	 	Collateral Agent Appointed Attorney-in-Fact
	 	 	8	 
	 
	 	 	 	 	 	 
	Section.11

	 	Collateral Agent or Secured Parties May Perform
	 	 	8	 
	 
	 	 	 	 	 	 
	Section 12.

	 	The Collateral Agent’s Duties
	 	 	8	 
	 
	 	 	 	 	 	 
	Section 13.

	 	Remedies
	 	 	9	 
	 
	 	 	 	 	 	 
	Section 14.

	 	Indemnity and Expenses
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 15.

	 	Amendments; Waivers; Additional Collateral Providers; Etc.
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 16.

	 	Notices, Etc.
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 17.

	 	Continuing Security Interest; Assignments under the Credit Agreement
	 	 	11	 
	 
	 	 	 	 	 	 
	Section 18.

	 	Release; Termination
	 	 	11	 






i









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	Section 19.

	 	Execution in Counterparts
	 	 	12	 
	 
	 	 	 	 	 	 
	Section 20.

	 	Governing Law and Jurisdiction
	 	 	12	 






	 	 	 	 	 
	Schedule 1

	 	-
	 	List of AJI Shares
	 
	 	 	 	 
	Schedule 2-1

	 	-
	 	List of Patents
	 
	 	 	 	 
	Schedule 2-2

	 	-
	 	List of Trademarks
	 
	 	 	 	 
	Schedule 2-3

	 	-
	 	List of Patent and Trademark Applications
	 
	 	 	 	 
	Exhibit A

	 	-
	 	Form of Deed of Assignment (joto shosho)
	 
	 	 	 	 
	Annex I
	 	 	 	 






ii









 






SECURITY AGREEMENT



SECURITY AGREEMENT dated July 26, 2007 made by and between Asyst Technologies, Inc., a company
under the laws of the state of California, ( the “Collateral Provider”), the financial institutions
listed in Annex I attached hereto (the “Secured Parties”) and KEYBANK NATIONAL ASSOCIATION, as
collateral agent (in such capacity, together with any successor collateral agent appointed pursuant
to Section 9.01(b) of the Credit Agreement (as hereinafter defined), the “Collateral Agent”) for
and on behalf of the Secured Parties.




Preliminary Statements





	(1)	 	The Collateral Provider, Asyst Japan Inc. (“AJI”) and Asyst Shinko, Inc., as Borrowers
have entered into a Credit Agreement dated as of July 26, 2007 (said Agreement, as it may
hereafter be amended, amended and restated, supplemented or otherwise modified from time to
time, being the “Credit Agreement”) with, inter alios, the Lenders and the Administrative
Agent.






	(2)	 	Pursuant to the Credit Agreement, the Collateral Provider is entering into this Agreement in
order to create in favour of the Secured Parties a security interest in each type of the
Collateral (as hereinafter defined).






	(3)	 	It is a condition precedent to the making of Loans by the Lenders and the issuance of Letters
of Credit by the L/C Issuer under the Credit Agreement, the entry into Secured Hedge
Agreements by the Hedge Banks and the entry into Secured Cash Management Agreements by the
Cash Management Banks from time to time that the Collateral Provider shall have created the
security interests contemplated by this Agreement.






	(4)	 	Terms defined in the Credit Agreement and not otherwise defined in this Agreement are used in
this Agreement as defined in the Credit Agreement. Sections, clauses, paragraphs and Schedules
in italics are references to Sections, clauses, paragraphs and Schedules of this Agreement.




NOW, THEREFORE, in order to induce the Lenders to make Term Loans and Revolving Credit Loans and
the L/C Issuer to issue Letters of Credit under the Credit Agreement and to induce the Hedge Banks
and the Cash Management Banks to enter into Secured Hedge Agreements and Secured Cash Management
Agreements, respectively from time to time, the Collateral Provider hereby agrees with the Secured
Parties as follows:




Section 1.Creation of Security





	1.1	 	Initial creation of security






	(a)	 	The Collateral Provider hereby creates in favour of the Secured Parties a first priority
security interest in the form of a pledge (shichiken) in all of the Collateral Provider’s
rights, title and interest in and to the shares of capital stock of AJI now owned by the
Collateral Provider, as described in Schedule 1 (any and all such property being the “AJI
Shares”) subject to the conditions designated by the Collateral Provider and the Collateral
Agent, if any.






	(b)	 	The Collateral Provider hereby transfers and assigns to the Secured Parties, by way of a
first priority security interest (joto tampoken), all of the Collateral Provider’s rights,
title and interest in and to




1









 






	 	 	the following (any and all Patents (as defined below) and Trademarks (as defined below)
being, the “Intellectual Property Collateral”):






	 	(i)	 	all patents as described in Schedule 2-1 (any and all patents subject
to the security interest created hereunder being “Patents”); and
	 
	 	(ii)	 	all trademarks as described in Schedule 2-2 (any and all trademarks
subject to the security interest created hereunder being “Trademarks”).






	1.2	 	Subsequent creation of security
	 
	 	 	The Collateral Provider agrees that upon the creation or acquisition by (or on behalf
of) itself of any properties which are of the type (i) enumerated in clauses (a)
and (b) of Section 1.1, including, without limitation, any Equity Interests
in AJI or any other entities incorporated in Japan, and any patents, trademarks or
copyrights registered in Japan or filed with the Japan Patent Office or (ii) otherwise
required under the terms of the Credit Agreement or any other Loan Document to be pledged
or otherwise encumbered for the benefit of the Secured Parties (including, without
limitation, any Material Property), the Collateral Provider will notify the Collateral
Agent thereof and promptly thereafter create in favour of the Secured Parties, a first
priority security interest in all of the Collateral Provider’s rights, title and interest
in and to any such properties or under such contract to the extent that such creation does
not result in a breach of or constitute a default under any agreement to which the
Collateral Provider is a party.
	 
	1.3	 	Collateral
	 
	 	 	All properties which are subject to any security interest created hereunder are herein
collectively called the “Collateral.” The Collateral shall include all proceeds of,
collateral for, income, royalties and other payments now or hereafter due and payable with
respect to any and all of the forgoing Collateral (including, without limitation, proceeds
and collateral that constitute property of the types described in clauses (a) and
(b) of Section 1.1, Section 1.2 and this Section 1.3) and, to the
extent not otherwise included, any indemnity, warranty or guaranty, payable by reason of
loss or damages to or otherwise with respect to any of the foregoing Collateral.
Notwithstanding anything herein to the contrary, in no event shall the Collateral include
any lease, license, contract, property rights or agreement to which the Collateral Provider
is a party or any of its rights or interest thereunder (other than the right to receive
payments) if the creation of such security interest hereunder (i) shall constitute or
result in the abandonment, invalidation or unenforceability of any right, title or interest
of the Collateral Provider therein or in a breach or termination pursuant to the terms of,
or a default under, any such lease, license, contract, property rights or agreement unless
the Collateral Provider shall have obtained a consent or waiver with respect to the Liens
created hereunder, or (ii) is prohibited by applicable law.





Section 2. Perfection of Security





	(a)	 	With respect to any Collateral set out under Section 1, upon execution of this
Agreement and subject to satisfaction of the conditions provided in Section 1 or upon
the creation or acquisition by (or on behalf of) the Collateral Provider thereof, the
Collateral Provider shall, at its sole cost and expense, take or cause to be taken all such
procedures as are necessary for the perfection of each of such Collateral, and take or cause
to be taken all further action that may be necessary or reasonably desired, or that the
Collateral Agent or the Secured Parties may reasonably request, for such purpose. Without
limiting the generality of the foregoing, the Collateral Provider shall at its sole cost and
expense, (i) within 5 days from the Closing Date, deliver to the Collateral Agent for the
rateable benefit of the Secured Parties all share certificates representing the AJI Shares in
a manner




2









 






	 	 	reasonably satisfactory to the Collateral Agent so as to be held by or on behalf of the
Collateral Agent pursuant hereto and (ii) on or prior to the Closing Date, prepare, duly
execute and deliver to the Collateral Agent a deed of assignment with respect to the Patents
and Trademarks in such form substantially as shown in Exhibit A (joto shosho).






	(b)	 	Each party understands that the Collateral Agent’s reasonable cooperation, including, without
limitation, obtaining a power of attorney from the relevant Secured Party, is necessary for
the registration of the assignment of the Intellectual Property Collateral or for the
performance by the Collateral Provider of its obligations relating to the perfection of the
security interests created hereunder. Moreover, the Collateral Provider shall retain a patent
attorney (benrishi), of its choice, to prepare all necessary documents for the recordation of
the assignment of the Intellectual Property Collateral or for the performance by the
Collateral Provider of its obligations relating to the perfection of the security interests
created hereunder.






	(c)	 	The Collateral Agent shall hold the share certificates representing AJI Shares specified in
clause (a) of this Section 2, delivered by the Collateral Provider within 5
days from the Closing Date and additional shares of capital stock to be issued by AJI, if any,
and shares of any other entities incorporated in Japan in accordance with the provision of the
Credit Agreement, if any, to the Collateral Agent upon its demand in accordance with
Section 1.2, on behalf of the Secured Parties.





Section 3. Security for Obligations



This Agreement secures all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now existing or
hereafter arising (all such obligations being the “Secured Obligations”).




Section 4. Collateral Provider Remains Liable



Anything herein to the contrary notwithstanding, (a) the Collateral Provider shall remain
liable under the contracts and agreements relating to any Collateral, to the extent set forth
therein to perform all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Collateral Agent or the Secured Parties of
any of the rights hereunder shall not release the Collateral Provider from any of its duties or
obligations under the contracts and agreements relating to any Collateral or in connection with any
Collateral, and (c) no Secured Party shall have any obligation or liability under the contracts and
agreements relating to any Collateral or in connection with any Collateral by reason of this
Agreement or any other Loan Document, nor shall any Secured Party be obligated to perform any of
the obligations or duties of the Collateral Provider thereunder or in connection with any
Collateral or to take any action to collect or enforce any claim for payment assigned hereunder.




Section 5. Representations and Warranties



The Collateral Provider hereby makes the following representations and warranties to the
Collateral Agent and the Secured Parties:





	(a)	 	It is the sole, legal and beneficial owner of the Collateral (excluding, for the avoidance of
doubt, any Collateral released under Section 18), free and clear of any Lien (other
than an existing security interest created under the security agreement dated as of July 13,
2006, and entered into by and among the Collateral Provider, AJI and Bank of America, N.A. as
collateral agent and any Liens permitted under Section 7.01 of the Credit Agreement), claim,
option or right of others, and except




3









 






	 	 	for the security interests created hereunder, and it has not agreed to encumber or cause or
allow to be encumbered any Collateral with any Lien, claim, option or right of others.






	(b)	 	It has not sold or agreed to sell, or otherwise disposed of or agreed to dispose of any or
all of the Collateral.






	(c)	 	As of the date of this Agreement and the Closing Date, the total number of the issued and
outstanding shares of capital stock of AJI is 24,470,400, 99.79 percent. of which are owned by
the Collateral Provider. The AJI Shares have been duly authorised and validly issued and are
fully paid and non-assessable.






	(d)	 	As of the date of this Agreement and the Closing Date, it has no patents, trademarks, or
service marks, registered in Japan, or any patent, trademark or service mark applications,
filed with the Japan Patent Office, other than the Patents and the Trademarks, and the patent
and trademark applications listed on Schedules 2-1, 2-2 and 2-3.






	(e)	 	A valid and perfected first priority security interest will be created in favour of the
Secured Parties securing the payment of the Secured Obligations, in the case of AJI Shares,
upon the delivery of the share certificates representing thereof to the Collateral Agent and
in the case of the Patents and Trademarks, upon the recordation of assignment thereof to the
Secured Parties.






	(f)	 	It is a corporation duly incorporated and validly existing under the laws of the jurisdiction
of its incorporation; has the corporate power and authority to own its assets and to transact
its business, and is duly qualified under the laws of each jurisdiction in which qualification
is required.






	(g)	 	The execution and performance by itself of this Agreement have been duly authorised by all
necessary corporate action and do not and will not (i) require any consent or approval of its
shareholders, (ii) contravene its charter or bylaws or any other constitutive documents of
itself, (iii) violate any provision of any law, rule, or regulation, or (iv) result in a
breach of or constitute a default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which it is a party or by which it or its properties may be
bound or affected.






	(h)	 	This Agreement is the legal, valid, and binding obligation of the Collateral Provider,
enforceable in accordance with its respective terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, and other similar laws
affecting creditors’ rights generally.






	(i)	 	No authorisation or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required for (i) the
creation of the security interests created hereunder or for the execution, delivery or
performance of this Agreement by the Collateral Provider, (ii) the perfection or maintenance
of any security interest created hereby (including the first priority nature of such security
interest), except for the application to the Japan Patent Office for transfer of the
Intellectual Property Collateral by way of security interest, or (iii) the exercise by the
Collateral Agent of any voting or other rights provided for in this Agreement or the remedies
in respect of any Collateral pursuant to this Agreement.






	(j)	 	The creation of a security interest hereunder in any lease, license, contract, property
rights or agreement to which the Collateral Provider is a party or any of the Collateral
Provider’s rights thereunder (i) does not and will not constitute or result in the
abandonment, invalidation or unenforceability of any right, title or interest of the
Collateral Provider therein or in a breach or termination pursuant to the terms of, or a
default under, any such lease, license, contract, property rights or agreement or (ii) does
not and will not violate any law.




4









 












	(k)	 	None of the properties listed on Schedules has been or is likely to be adjudged invalid or
unenforceable in whole or part and all Patents and Trademarks listed on Schedules 2-1
and 2-2 and the AJI Shares are valid and enforceable.






	(l)	 	None of the Collateral Provider and the properties listed on Schedules is or is likely to be
subject to any outstanding consent, settlement, decree, order, injunction, judgment or ruling
restricting the use of such properties.






	(m)	 	All information provided by the Collateral Provider to the Secured Parties through the
Collateral Agent in connection with this Agreement, including the information set out in
Schedules is true and accurate in all material respects and comprehensive, and there is no
matter which renders or could render any of such information untrue, inaccurate or misleading
in any respect.






	(n)	 	Under the laws of Japan, there is no requirement that the Collateral Agent or any of the
Secured Parties qualify to do business in Japan or comply with the requirement of any foreign
lender statute or to pay any Tax in order to carry out the transactions contemplated by,
receive the benefits of, or enforce the provisions of this Agreement or the other Loan
Documents or the documents provided for therein, nor will the Collateral Agent or any of the
other Secured Parties be subject to any other type of taxation in Japan solely as the result
of the performance of such transactions or the enforcement of any rights or remedies granted
under this Agreement or any of the other Loan Documents.






	(o)	 	AJI has not adopted any internal rule (including its articles of incorporation), entered into
any agreement with any third party, or taken any action whatsoever, which may restrict the
disposition of the AJI Shares in connection with the enforcement of the pledge created
hereunder.





Section 6. Undertakings



So long as any Secured Obligations remain unpaid, the Collateral Provider hereby covenants to
do the following or not to do the following unless necessary consent is obtained from the relevant
Persons in accordance with the provisions of the Credit Agreement.





	(a)	 	It will warrant and defend and cause others to warrant and defend its rights, title and
interest in and to any of the Collateral for the benefit of the Secured Parties against any
claims and demands of all other Persons whomsoever.






	(b)	 	It will continue to be the sole, legal and beneficial owner of each of the Collateral
(excluding, for the avoidance of doubt, any Collateral released under Section 18),
free and clear of any Lien, claim, option or right of others, except for the security
interests created hereunder.






	(c)	 	It will comply and cause others to comply with all the provisions of any applicable law in
order to establish and maintain any security interest created hereunder as a valid, perfected
first priority security interest.






	(d)	 	It will pay all reasonable costs, and all taxes and governmental charges in connection with
the preparation, execution or amendment of this Agreement and the creation and perfection of
or amendment to any security interest created hereunder (including, without limitation,
registration fees incurred in connection with the registration of any security interest
created hereunder and the recordation of any change made to any matters recorded on the patent
registry or the trademark registry and reasonable fees and expenses of the Collateral Agent’s
or the Secured Parties’ counsel relating thereto), and promptly pay or procure the payment of
all fees and taxes and all other reasonable expenses whatsoever in respect of any of the
Collateral, so that any security interest




5









 






	 	 	created hereunder shall at all times be wholly preserved at the cost of the Collateral
Provider and without expense to the Collateral Agent or any Secured Party.






	(e)	 	Unless otherwise permitted under the Credit Agreement, it will not cause or allow any Lien,
claim, option or right of others whatsoever to be created, incurred, placed or imposed upon
any of its properties, including any Collateral.






	(f)	 	Unless otherwise permitted under the Credit Agreement, it will not sell or otherwise dispose
of, or cause to be sold or otherwise disposed of, any of its properties, including any
Collateral, or any share or interest in any of the Collateral.






	(g)	 	It will notify or cause to be notified the Collateral Agent forthwith if any order or notice
of provisional attachment, provisional attachment for the purpose of assuring collection of
taxes or public imposts or attachment with respect to any of its properties, including the
Collateral, is dispatched.






	(h)	 	It will not make or cause to be made any major alteration to any of the Collateral.






	(i)	 	Upon completion of the registration of any patent or trademark with the Japan Patent Office
in its name or upon the filing of an application for patent or trademark in its name with the
Japan Patent Office, it will promptly notify the Collateral Agent thereof in writing, and in
the case of the registration of a patent or trademark, will create a security interest in all
of the Collateral Provider’s rights, title and interest in and to such registered patent or
trademark in favour of the Secured Parties and perfect or cause to be perfected the security
interest so created, in such manner as the Collateral Agent determines to be necessary and
appropriate.






	(j)	 	It will permit the Collateral Agent, its employees or Subagents (as defined in Section
12(b)) at all reasonable times and subject to at least twenty-four (24) hours prior notice
to survey and/or inspect any of the Collateral, give or cause to be given all reasonable
assistance in connection with such survey and inspection, and make or cause to be made all
such repairs as such survey or inspection shall reveal to be necessary to enable the relevant
Collateral to comply with the requirements hereof.






	(k)	 	It will supply or cause to be supplied to the Collateral Agent, upon request by the
Collateral Agent, full information regarding any of the Collateral.






	(l)	 	It will keep or cause to be kept proper books of account in respect of any of the Collateral,
and as and when the Collateral Agent may so require, ensure that such books are made available
for inspection by the Collateral Agent.






	(m)	 	It will not assign any right, duty, obligation or liability hereunder.






	(n)	 	Unless otherwise permitted under the Credit Agreement and otherwise than the issue of shares
for the purpose of or pursuant to a stock split or reverse stock split or any other means
under which it does not cause AJI’s issued share capital to change under the Company Law of
Japan or for the purpose of or pursuant to and followed by a merger or consolidation permitted
under Section 7.04 of the Credit Agreement,, it will not permit AJI to issue any new Equity
Interest.





Section 7. Further Assurances





	(a)	 	The Collateral Provider agrees that from time to time, at the expense of the Collateral
Provider, the Collateral Provider will promptly execute and deliver, or otherwise
authenticate, all further instruments and documents, and take all further action that may be
necessary or reasonably desired, or that the Collateral Agent or the Secured Parties may
reasonably request, in order to create, perfect




6









 






	 	 	and protect any security interest created or purported to be created by the Collateral
Provider hereunder or to enable the Collateral Agent or the Secured Parties to exercise and
enforce their rights and remedies hereunder with respect to any Collateral.






	(b)	 	The Collateral Provider will furnish to the Collateral Agent from time to time statements and
schedules further identifying and describing the Collateral and such other reports in
connection with any Collateral as the Collateral Agent may reasonably request, all in
reasonable detail.





Section 8. Voting Rights; Dividends; Etc





	(a)	 	So long as no Specified Default shall have occurred and be continuing:






	 	(i)	 	The Collateral Provider shall be entitled to exercise any and all voting and
other consensual rights pertaining to any Equity Interests which are subject to the
security interest created hereunder for any purpose.
	 
	 	(ii)	 	The Collateral Provider shall be entitled to receive and retain any and all
dividends, interest and other distributions paid in respect of any Equity Interests
which are subject to the security interest created hereunder if and to the extent that
the payment thereof is not otherwise prohibited by the terms of the Loan Documents;
provided, that any and all such dividends, interest and distributions shall be
Collateral subject to any other applicable provisions of this Agreement.






	(b)	 	Upon the occurrence and during the continuance of a Specified Default, upon notice by the
Collateral Agent:






	 	(i)	All rights of the Collateral Provider (I) to exercise or refrain from
exercising the voting and other consensual rights that it would otherwise be entitled
to exercise pursuant to Section 8(a)(i) shall cease and (II) to receive the
dividends, interest and other distributions that it would otherwise be authorized to
receive and retain pursuant to Section 8(a)(ii) shall automatically cease, and
all such rights shall thereupon become vested in the Collateral Agent and the Secured
Parties, which shall thereupon have the sole right as against the Collateral Provider
to exercise or refrain from exercising such voting and other consensual rights and to
receive and hold as Collateral such dividends, interest and other distributions.
	 
	 	(ii)	All dividends, interest and other distributions that are received by the
Collateral Provider contrary to the provisions of paragraph (i) of this Section
8(b) shall be received in custody for the benefit of the Secured Parties, shall be
segregated from other funds of the Collateral Provider and shall be forthwith paid over
to the Collateral Agent as Collateral in the same form as so received (with any
necessary indorsement).




For purposes of this Agreement, “Specified Default” means the occurrence and continuance of (i) an
Event of Default or (ii) a Default under clause (f) or (g) of Section 8.01 of the Credit Agreement.




Section 9. Intellectual Property Collateral





	(a)	 	With respect to each item of its Intellectual Property Collateral, the Collateral Provider
agrees to take, at its expense, all necessary steps to (i) maintain the validity and
enforceability of any Intellectual Property Collateral and maintain any Intellectual Property
Collateral in full force and effect, and (ii) pursue the registration and maintenance of each
patent or trademark now or hereafter included in the Intellectual Property Collateral or each
of the patent or trademark applications listed on Schedule 2-3 or hereafter notified
to the Collateral Agent, including, without limitation, the payment of required fees and
taxes, the filing of responses to office actions issued by any




7









 






	 	 	governmental authorities, the filing of applications for renewal or extension, the payment
of maintenance fees and the participation in interference, re-examination, opposition,
cancellation, infringement and misappropriation proceedings. The Collateral Provider shall
not, without obtaining consent of the relevant Person in accordance with the Credit
Agreement, discontinue use of or otherwise abandon any Intellectual Property Collateral, or
abandon any application for a patent or trademark filed with the Japan Patent Office, unless
the loss thereof could not reasonably be expected to have a Material Adverse Effect, in
which case, the Collateral Provider will give prompt notice of any such abandonment to the
Collateral Agent.






	(b)	 	The Collateral Provider shall take all steps which it or the Collateral Agent deems
reasonable and appropriate under the circumstances to preserve and protect each item of the
Intellectual Property Collateral, including, without limitation, maintaining the quality of
any and all products or services used or provided in connection with any of the Trademarks,
consistent with the quality of the products and services as of the date hereof, and taking all
steps necessary to ensure that all licensed users of any of the Trademarks use such consistent
standards of quality and singly or jointly with the Collateral Agent and the Secured Parties,
as the Collateral Agent instructs, defending or bringing any infringement or other proceedings
with respect to any Intellectual Property Collateral.





Section 10. Collateral Agent Appointed Attorney-in-Fact



The Collateral Provider hereby irrevocably appoints the Collateral Agent the Collateral
Provider’s attorney-in-fact, with full authority in the place and stead of the Collateral Provider
and in the name of the Collateral Provider or otherwise, from time to time, upon the occurrence and
during the continuance of a Specified Default, in the Collateral Agent’s discretion, to take any
action and to execute any instrument that the Collateral Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation:





	(a)	 	to ask for, demand, collect, recover, compromise, receive and give acquittance and receipts
for moneys due and to become due under or in respect of any of the Collateral; and






	(b)	 	to receive, indorse and collect any drafts or other instruments or documents in connection
with clause (a) above.





Section.11 Collateral Agent and the Secured Parties May Perform



If the Collateral Provider fails to perform any agreement contained herein, the Collateral
Agent or the Secured Parties may, as either deems necessary to protect any security interest
created hereunder in the Collateral or to protect the value thereof, but without any obligation to
do so and without notice, itself perform, or cause performance of, such agreement, and the expenses
of the Collateral Agent or the Secured Parties incurred in connection therewith shall be payable by
the Collateral Provider under Section 14.




Section 12. The Collateral Agent’s Duties





	(a)	 	The powers conferred on the Collateral Agent hereunder are solely to protect the Secured
Parties’ interest in the Collateral and shall not impose any duty upon it to exercise any such
powers. Except for the exercising of reasonable care with respect to the Collateral in its
possession and the accounting for moneys actually received by it hereunder, the Collateral
Agent shall have no duty as to any Collateral, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not any Secured Party has or is deemed to have knowledge of such
matters, or as to the taking of any necessary steps to preserve rights against any parties or
any other rights pertaining to any Collateral. The Collateral






8









 






	 	 	Agent shall be deemed to have exercised reasonable care in the custody and preservation of
any Collateral in its possession if it takes such action for that purpose as the Collateral
Provider reasonably requests in writing at times other than upon the occurrence and during
the continuance of any Specified Default, but failure of the Collateral Agent to comply with
any such request at any time shall not in itself be deemed a failure to exercise reasonable
care.
	 
	(b)	 	Anything contained herein to the contrary notwithstanding, the Collateral Agent may from time
to time, when the Collateral Agent deems it to be necessary, appoint one or more subagents
(each a “Subagent”) for the Collateral Agent hereunder with respect to all or any part of the
Collateral. In the event that the Collateral Agent so appoints any Subagent with respect to
any Collateral, (i) such Subagent shall automatically be vested, in addition to the Collateral
Agent, with all rights, powers, privileges, interests and remedies of the Collateral Agent
hereunder with respect to such Collateral, and (ii) the term “Collateral Agent,” when used
herein in relation to any rights, powers, privileges, interests and remedies of the Collateral
Agent with respect to such Collateral, shall include such Subagent.





Section 13. Remedies



If any Specified Default shall have occurred and be continuing:





	(a)	 	The Collateral Agent or the Secured Parties may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a Secured Party upon default under the applicable law and also may:
(i) require the Collateral Provider to, and the Collateral Provider hereby agrees that it will
at its expense and upon request of the Collateral Agent forthwith, assemble all or part of the
Collateral as directed by the Collateral Agent and make it available to the Collateral Agent
at a place and time to be designated by the Collateral Agent that is reasonably convenient to
both parties; (ii) without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the Collateral Agent’s
offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as
the Collateral Agent may deem commercially reasonable; (iii) occupy any premises owned or
leased by the Collateral Provider where the Collateral or any part thereof is assembled or
located for a reasonable period in order to effectuate its rights and remedies hereunder or
under law, without obligation to the Collateral Provider in respect of such occupation; and
(iv) exercise any and all rights and remedies of the Collateral Provider under or in
connection with the Collateral, or otherwise in respect of the Collateral. The Collateral
Provider agrees that, to the extent notice of sale shall be required by law, at least ten
days’ notice to such Collateral Provider of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable notification. The
Collateral Agent or the Secured Parties shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given.






	(b)	 	Any cash held by or on behalf of the Collateral Agent or the Secured Parties and all cash
proceeds received by or on behalf of the Collateral Agent or the Secured Parties in respect of
any sale of, collection from, or other realisation upon all or any part of the Collateral may,
in the discretion of the Collateral Agent or the Secured Parties, be held by the Collateral
Agent as collateral for, and/or then or at any time thereafter applied (after payment of any
amounts payable to the Collateral Agent or the Secured Parties pursuant to Section
14) in whole or in part by the Collateral Agent for the rateable benefit of the Secured
Parties against, all or any part of the Secured Obligations, in the manner set forth under
Section 8.03 of the Credit Agreement. Any surplus of such cash or cash proceeds held by or on
the behalf of the Collateral Agent or the Secured Parties and remaining after payment in full
of all the Secured Obligations shall be paid over to the Collateral Provider or to whomsoever
may be lawfully entitled to receive such surplus.





9









 






	(c)	 	All payments received by the Collateral Provider in respect of the Collateral shall be
received in custody for the benefit of the Secured Parties, shall be segregated from other
funds of the Collateral Provider and shall be forthwith paid over to the Collateral Agent in
the same form as so received (with any necessary indorsement).





Section 14. Indemnity and Expenses





	(a)	 	The Collateral Provider agrees to indemnify, defend and save and hold harmless each
Secured Party and each of their Affiliates and their respective officers, directors,
employees, agents and advisors (each, an “Indemnified Party”) from and against, and shall pay
on demand, any and all claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in connection with or
resulting from this Agreement or any Collateral (including, without limitation, enforcement of
this Agreement and any breach or alleged breach of any of the representations, warranties or
covenants, or agreements made by the Collateral Provider hereunder), except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party’s gross
negligence or wilful misconduct.






	(b)	 	The Collateral Provider will upon demand pay to the Collateral Agent or the Secured Parties
the amount of any and all taxes and all reasonable expenses, including, without limitation,
the reasonable fees and expenses of its counsel and of any experts and agents, that the
Collateral Agent or the Secured Parties may incur in connection with (i) the administration
of this Agreement, (ii) the custody, preservation, use or operation of, or the sale of,
collection from or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Collateral Agent or the Secured Parties hereunder or
(iv) the failure by the Collateral Provider to perform or observe any of the provisions
hereof.





Section 15. Amendments; Waivers; Additional Collateral Providers; Etc.



No amendment or waiver of any provision of this Agreement, and no consent to the departure by
the Collateral Provider herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Collateral Agent and the Secured Parties in accordance with the
provisions of the Credit Agreement, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No failure on the part of the
Collateral Agent or any Secured Party to exercise, and no delay in exercising any right hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right.




Section 16. Notices, Etc.




Except in the case of notices and other communications expressly permitted to be given by
telephone (and except as provided in Section 10.02(b) of the Credit Agreement), all notices and
other communications provided for hereunder shall be either (i) in writing (including telegraphic,
telecopier or telex communication) and delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows: in the case of the Collateral Agent,
Secured Parties and the Collateral Provider, addressed to them at their respective addresses
specified in the Credit Agreement; or, as to any party, at such other address as shall be
designated by such party in a written notice to the other parties. Notices sent by hand or
overnight courier service, or mailed by certified or registered mail, shall be deemed to have been
given when received; notices sent by telecopier shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient, shall be deemed to have
been given at the



10









 





opening of business on the next business day for the recipient). Notices delivered through
electronic communications to the extent provided in Section 10.02(b) of the Credit Agreement shall
be effective as provided in such subsection. Delivery by telecopier of an executed counterpart of
any amendment or waiver of any provision of this Agreement or Schedule hereto shall be effective as
delivery of an original executed counterpart thereof.



Section 17. Continuing Security Interest; Assignments under the Credit Agreement




This Agreement shall create a continuing security interest in each of the Collateral and shall
(a) remain in full force and effect until the latest of (i) the payment in full in cash of the
Secured Obligations, (ii) the Maturity Date and (iii) the termination or expiration of all
Commitments and all Letters of Credit, (b) be binding upon the Collateral Provider, its successors
and assigns and (c) inure, together with the rights and remedies of the Collateral Agent hereunder,
to the benefit of the Secured Parties and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), any Secured Party may assign
or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Commitment, the Loans owing to it and the
Note or Notes, if any, held by it) and other Loan Documents to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect thereof granted to such
Secured Party herein or otherwise, in each case as provided in Section 10.06 of the Credit
Agreement.



Section 18. Release; Termination





	(a)	 	Upon any Disposition of any item of the Collateral in accordance with the terms of the
Loan Documents, the Secured Parties and the Collateral Agent will, at the Collateral
Provider’s expense, execute and deliver to the Collateral Provider (without recourse or
representation or warranty) such documents as the Collateral Provider shall reasonably request
to evidence the release of such item of the Collateral from the security interests created
hereby; provided, that (i) at the time of such request and such release no Specified
Default shall have occurred and be continuing, (ii) the Collateral Provider shall have
delivered to the Collateral Agent, at least five Business Days prior to the date of the
proposed release, a written request for release describing the item of the Collateral and the
terms of the sale, lease, transfer or other disposition in reasonable detail, including,
without limitation, the price thereof and any expenses in connection therewith, together with
a form of release for execution by the Secured Parties and the Collateral Agent and a
certificate of the Collateral Provider to the effect that the transaction is in compliance
with the Loan Documents and as to such other matters as the Collateral Agent or the Secured
Parties may reasonably request and (iii) the proceeds of any such sale, lease, transfer or
other disposition required to be applied, or any payment to be made in connection therewith,
in accordance with Section 8.03 of the Credit Agreement shall, to the extent so required, be
paid or made to, or in accordance with the instructions of, the Administrative Agent when and
as required under Section 8.03 of the Credit Agreement.






	(b)	 	Upon the latest of (i) the payment in full in cash of the Secured Obligations, (ii) the
Maturity Date and (iii) the termination or expiration of all Commitments and all Letters of
Credit, the security interests created hereby shall terminate and all rights to the Collateral
shall revert to the Collateral Provider. Upon any such termination, the Secured Parties and
Collateral Agent will, at the Collateral Provider’s expense, execute and deliver to the
Collateral Provider (without recourse or representation or warranty) such documents as the
Collateral Provider shall reasonably request to evidence such termination.




11









 











Section 19. Execution in Counterparts




This Agreement may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier
shall be effective as delivery of an original executed counterpart of this Agreement.



Section 20. Governing Law and Jurisdiction




This Agreement shall be governed by, and construed in accordance with, the laws of Japan. Any
disputes or controversies between the parties arising out of or in connection with the
interpretation or performance of this Agreement shall be subject to the non-exclusive jurisdiction
of the Tokyo District Court.



This Agreement has been entered into as of the date stated at the beginning of this Agreement.



12









 





Exhibit G-4




TAIWANESE PATENT SECURITY AGREEMENT




     This TAIWANESE PATENT SECURITY AGREEMENT, dated as of                     , 2007 (this
“Agreement”), is made by ASYST TECHNOLOGIES, INC. (the “Grantor” or the
“Company”), in favor of                                          as the Taiwan collateral agent (together with
its successor(s) thereto in such capacity, the “Taiwan Collateral Agent”) for itself and
each of the other Secured Parties (such capitalized term and other capitalized terms used in this
preamble and the recitals below to have the meanings set forth in, or are defined by reference in,
Section 1 below).



W I T N E S S E T H :




     WHEREAS, pursuant to a Credit Agreement, dated as of                     , 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Grantor, Asyst Japan, Inc., a Japanese corporation (“AJI”), Asyst Shinko, Inc., a
Japanese corporation (“ASI”), the Designated Borrowers from time to time party thereto (the
Designated Borrowers, collectively with the Company, AJI and ASI, the “Borrowers”), the
Lenders from time to time party thereto and the Administrative Agent, the Lenders and the L/C
Issuer have extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, pursuant to the Credit Agreement, the Grantor is required to execute and deliver this
Agreement and to grant to the Taiwan Collateral Agent a continuing security interest in all of the
Patent Collateral to secure all Secured Obligations; and



     WHEREAS, the Grantor has duly authorized the execution, delivery and performance of this
Agreement; and



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantor agrees, for the benefit of each Secured Party, as follows:



     SECTION 1. Certain Definitions.



     (a) The following terms when used in this Agreement shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):



 









 





     “Agreement” is defined in the preamble.



     “AJI” is defined in the first recital.



     “ASI” is defined in the first recital.



     “Borrowers” is defined in the first recital.



     “Company” is defined in the first recital.



     “Credit Agreement” is defined in the first recital.



     “Grantor” is defined in the preamble.



     “Intellectual Property Office” means the Intellectual Property Office of the Ministry
of Economic Affairs of the Republic of China.



     “Patents” is defined in Section 2.



     “Patent Collateral” is defined in Section 2.



     “Secured Obligations” is defined in Section 3.



     “Taiwan Collateral Agent” is defined in the preamble.



     “Termination Date” means the date on which all Secured Obligations have been paid in
full in cash, all Letters of Credit have been terminated or expired (or been Cash Collateralized),
all Secured Hedge Agreements have been terminated and all Commitments shall have terminated.



     (b) Other Definitions. Terms for which meanings are provided in the Credit Agreement
are, unless otherwise defined herein or the context otherwise requires, used in this Agreement with
such meanings.



     SECTION 2. Grant of Security Interest. The Grantor hereby pledges to the Taiwan
Collateral Agent, as joint and several creditors under Article 283 of the Civil Code of the
Republic of China, for its benefit and the ratable benefit of each other Secured Party, all of the
Grantor’s right, title and interest throughout the world, whether now or hereafter existing or
acquired by the Grantor, in and to the following (“Patent Collateral”) as a continuing
security for the due and punctual payment and performance of the Secured Obligations.



 









 





     (a) each patent referred to in Schedule I and all inventions claimed or disclosed
therein and all improvements thereto (collectively, “Patents”);



     (b) the right to sue third parties for past, present and future infringements of any Patent;
and



     (c) all proceeds of, and rights associated with, the foregoing (including proceeds, licenses,
royalties, income, payments, claims, damages and proceeds of infringement suits).



     SECTION 3. Security for Obligations. This Agreement secures all Obligations of
Foreign Obligors, including but not limited to principal, interest, default interest, default
penalties, fees, expenses, disbursements, compensation, expenses for acquiring enforcement titles,
expenses for compulsory execution and participating in distribution of enforcement proceeds
(including but not limited to the commitment fees, arrangement fees, agency fees, operation fees,
insurance premiums advanced by the Taiwan Collateral Agent or any other Secured Party, warehouse
rent, moving expenses, and other expenses) and all damages and other amounts resulting from the non
performance of Obligations of the Grantor (collectively the “Secured Obligations”).



     SECTION 4. Perfection of Security. With respect to any Patent Collateral, upon
execution of this Agreement or upon acquisition by the Grantor thereof, the Grantor shall, at its
sole cost and expense, take or cause to be taken all such procedures as are necessary for the
perfection of each of such Patent Collateral, and take or cause to be taken all further action that
may be necessary or reasonably desired, or that the Taiwan Collateral Agent may reasonably request,
for such purpose. Without limiting the generality of the foregoing, the Grantor shall, at its sole
cost and expense, prepare any and all such documents as are necessary for the registration or
perfection of the security interests in the Patent Collateral.



     SECTION 5. Representations and Warranties. The Grantor represents and warrants as set
forth below:



     (a) It is a corporation duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation; has the corporate power and authority to own its assets and to
transact its business, and is duly qualified under the laws of each jurisdiction in which
qualification is required.



     (b) The execution and performance by itself of this Agreement have been duly authorized by all
necessary corporate action and do not and will not (i) require



 









 




any consent or approval of its shareholders, (ii) contravene the articles of incorporation or
any other constitutive documents of itself, (iii) violate any provision of any law, rule, or
regulation, or (iv) result in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease, or instrument to which it is a party or by which it
or its properties may be bound or affected.




     (c) This Agreement is the legal, valid, and binding obligation of the Grantor, enforceable in
accordance with its respective terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency, and other similar laws affecting creditors’ rights generally.



     (d) No authorization or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required for the execution,
delivery or performance of this Agreement by the Grantor except filing with the Intellectual
Property Office with respect to the creation of the security interest or perfection of the security
interest created hereunder and application to the court for foreclosure of part or all of the
Patent Collateral.



     (e) The Patents set forth in Schedule I hereto is a complete and accurate list of all
patents issued by the Intellectual Property Office and owned by the Grantor.



     (f) None of the Patent Collateral has been or is likely to be adjudged invalid or
unenforceable in whole or part and all Patent Collateral is valid and enforceable.



     (g) It is the sole, legal and beneficial owner of each of the Patent Collateral, free and
clear of any Lien, claim, option or right of others, except for the security interests created
hereunder, and it has not agreed to encumber or cause or allow to be encumbered any Patent
Collateral with any Lien, claim, option or right of others other than the security interest created
hereunder. The Patent Collateral is not prohibited from possession, transfer or pledge and is not
seized or subject to any attachment.



     (h) This Agreement creates in favor of the Taiwan Collateral Agent for the benefit of the
Secured Parties a valid and perfected first priority security interest in the Patent Collateral,
securing the payment of the Secured Obligations, and all filings and registrations or other actions
necessary or desirable to perfect such security interest have been duly made or taken and are in
full force and effect.



 









 





     (i) The value of each Patent Collateral was measured by the Grantor or any other Person in
good faith and in a commercially reasonable manner and reasonably reflects the fair market value
thereof.



     (j) All information provided by the Grantor in connection with this Agreement, including the
information set out in Schedule I is true and accurate in all material respects and comprehensive,
and there is no matter which renders or could render any of such information untrue, inaccurate or
misleading in any material respect.



     (k) Other than as specified in Schedule II, under the Laws of the Republic of China, there is
no requirement that the Taiwan Collateral Agent, in its capacity as pledgee or secured party, or
any of the other Secured Parties qualify to do business in such jurisdiction or comply with the
requirement of any foreign lender statute or to pay any Tax in order to carry out the transactions
contemplated by, receive the benefits of, or enforce the provisions of this Agreement or the other
Loan Documents or the documents provided for therein, nor will the Taiwan Collateral Agent or any
of the other Secured Parties will be subject to any other type of taxation in such jurisdiction
solely as the result of the performance of such transactions or the enforcement of any rights or
remedies granted under this Agreement or any of the other Loan Documents.



     (l) The Grantor clearly understands the scope of indebtedness secured under the pledge created
under this Agreement and the Taiwan Collateral Agent has the right to foreclose any of the Patent
Collateral to pay the Secured Obligations.



     (m) The Grantor hereby represents that it was given a reasonable period of time to review and
understand the provisions of this Agreement in full before having it executed.



     (n) None of the Grantor and the Patent Collateral listed on Schedule I is or is likely
to be subject to any outstanding consent, settlement, decree, order, injunction, judgment or ruling
restricting the use of such properties.



     SECTION 6. Covenants. Until the occurrence of the Termination Date, the Grantor
shall:



     (a) warrant and defend and cause others to warrant and defend its rights, title and interest
in and to any of the Patent Collateral for the benefit of the Secured Parties against any claims
and demands of all other Persons whomsoever;



 









 





     (b) continue to be the sole, legal and beneficial owner of each of the Patent Collateral, free
and clear of any Lien, claim, option or right of others, except for the security interests created
hereunder;



     (c) comply and cause others to comply with all the provisions of any applicable law in order
to establish and maintain any of the security created hereunder as a valid, perfected, first
priority security;



     (d) pay all costs, taxes, and governmental charges in connection with the preparation,
execution or amendment of this Agreement and the creation and perfection of or amendment to any
security interest created hereunder (including, without limitation, registration fees incurred in
connection with the registration of any security interest created hereunder and the recordation of
any change made to any matters recorded on the Intellectual Property Office and reasonable fees and
expenses of the Taiwan Collateral Agent’s counsel relating thereto), and promptly pay or procure
that the payment of all fees, taxes and other expenses whatsoever in respect of any of the Patent
Collateral, so that any security created hereunder shall at all times be wholly preserved at the
cost of the Grantor and without expense to the Taiwan Collateral Agent or any Secured Party;



     (e) notify or cause to be notified the Taiwan Collateral Agent forthwith if any order or
notice of provisional attachment, provisional attachment for the purpose of assuring collection of
taxes or public imposts or attachment with respect to any of its properties, including the Patent
Collateral, is dispatched;



     (f) upon completion of the registration of any patent with the Intellectual Property Office in
its name or upon the filing of an application for patent in its name with the Intellectual Property
Office, promptly notify the Taiwan Collateral Agent thereof, and in the case of the registration of
a patent, will, on demand by the Taiwan Collateral Agent, create a security interest in all of the
Grantor’s right, title and interest in and to such registered patent in favor of the Secured
Parties and perfect or cause to be perfected the security interest so created, in such manner as
the Taiwan Collateral Agent determines to be necessary and appropriate;



     (g) not assign any right, duty, obligation or liability hereunder without the prior written
consent of the Taiwan Collateral Agent;



     (h) take, at its expense, all necessary steps to (i) maintain the validity and enforceability
of any Patent Collateral and maintain any Patent Collateral in full force and effect, and (ii)
pursue the registration and maintenance of each patent now or



 









 




hereafter included in the Patent Collateral, including, without limitation, the payment of
required fees and taxes, the filing of responses to office actions issued by any governmental
authorities, the filing of applications for renewal or extension, the payment of maintenance fees
and the participation in interference, re-examination, opposition, cancellation, infringement and
misappropriation proceedings; and




     (i) not, without the written consent of the Taiwan Collateral Agent, discontinue use of or
otherwise abandon any Patent Collateral, or abandon any filed application for patents, unless the
loss thereof could not reasonably be expected to have a Material Adverse Effect, in which case, the
Grantor will give prompt notice of any such abandonment to the Taiwan Collateral Agent.



     SECTION 7. Further Assurances.



     (a) The Grantor agrees that from time to time, at the expense of the Grantor, the Grantor will
promptly execute and deliver, or otherwise authenticate, all further instruments and documents, and
take all further action that may be necessary or reasonably desired, or that the Taiwan Collateral
Agent may reasonably request, in order to perfect and protect any security interest created or
purported to be created by the Grantor hereunder or to enable the Taiwan Collateral Agent to
exercise and enforce its rights and remedies hereunder with respect to any Patent Collateral.



     (b) The Grantor will furnish to the Taiwan Collateral Agent from time to time statements and
schedules further identifying and describing the Patent Collateral and such other reports in
connection with any Patent Collateral as the Taiwan Collateral Agent may reasonably request, all in
reasonable detail.



     SECTION 8. Foreclosure. If an Event of Default has occurred and is continuing, the
Taiwan Collateral Agent may foreclose all or any part of the Patent Collateral and apply the
proceeds of any such foreclosure in accordance with Section 8.03 of the Credit Agreement.



     SECTION 9. Waiver, etc. The Grantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations, this Agreement and any
requirement that any Secured Party protect, secure, perfect or insure any Lien, or any property
subject thereto, or exhaust any right or take any action against any Loan Party or any other Person
(including any other collateral provider) or entity or any Collateral securing the Obligations, as
the case may be.



 









 





     SECTION 10. Release of Liens. Upon (i) the Disposition of Patent Collateral in
accordance with the Credit Agreement or (ii) the occurrence of the Termination Date, the security
interests granted herein shall automatically terminate with respect to (A) such Patent Collateral
(in the case of clause (i)) or (B) all Patent Collateral (in the case of clause
(ii)). Upon any such Disposition or termination, the Taiwan Collateral Agent will, at the
Grantor’s sole expense, release without any representations, warranties or recourse of any kind
whatsoever, all Patent Collateral held by the Taiwan Collateral Agent hereunder, and execute and
deliver to the Grantor such Documents as the Grantor shall reasonably request to evidence such
termination.



     SECTION 11. Taiwan Collateral Agent May Perform. If the Grantor fails to perform any
agreement contained herein, the Taiwan Collateral Agent may, as the Taiwan Collateral Agent deems
necessary to protect any security interest created hereunder in any of the Patent Collateral or to
protect the value thereof, but without any obligation to do so and without notice, itself perform,
or cause performance of, such agreement, and the expenses of the Taiwan Collateral Agent incurred
in connection therewith shall be payable by the Grantor.



     SECTION 12. Taiwan Collateral Agent’s Duties. The powers conferred on the Taiwan
Collateral Agent hereunder are solely to protect the Secured Parties’ interest in the Patent
Collateral and shall not impose any duty upon it to exercise any such powers. Except for exercising
reasonable care for any of the Patent Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Taiwan Collateral Agent shall have no duty as to any of the
Patent Collateral, or as to the taking of any necessary steps to preserve rights against any
parties or any other rights pertaining to any of the Patent Collateral. The Taiwan Collateral
Agent shall be deemed to have exercised reasonable care in the custody and preservation of any of
the Patent Collateral in its possession if it takes such action for that purpose as the Grantor
reasonably requests in writing at times other than upon the occurrence and during the continuance
of any Event of Default, but failure of the Taiwan Collateral Agent to comply with any such request
at any time shall not in itself be deemed a failure to exercise reasonable care.



     SECTION 13. Assignments by Secured Parties. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors and permitted
assigns; provided that the Grantor may not assign or transfer its rights or obligations hereunder
without the consent of the Taiwan Collateral Agent. Any Secured Party may assign or otherwise
transfer all or any portion of its rights and



 









 




obligations under the Credit Agreement (including, without limitation, all or any portion of
its Commitment, the Loans owing to it and the Note or Notes, if any, held by it) and other Loan
Documents to any other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Secured Party herein or otherwise, in each case as
provided in Section 10.06 of the Credit Agreement.




     SECTION 14. Amendments. No amendment or waiver of any provision of this Agreement,
and no consent to the departure by the Grantor herefrom, shall in any event be effective unless the
same shall be in writing and signed by the Taiwan Collateral Agent, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given. No
failure on the part of the Taiwan Collateral Agent or any other Secured Party to exercise, and no
delay in exercising any right hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise thereof or the exercise
of any other right.



     SECTION 15. Loan Document. This Agreement is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof, including Article X thereof.



     SECTION 16. Governing Law And Entire Agreement. THIS AGREEMENT WILL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE REPUBLIC OF CHINA. This Agreement and the
other Loan Documents constitute the entire understanding among the parties hereto with respect to
the subject matter hereof and thereof and supersede any prior agreements, written or oral, with
respect thereto.



     SECTION 17. Jurisdiction. The Grantor agrees that any legal action or proceeding
arising out of or relating to this Agreement may be brought in the Taipei District Court, Taipei,
Taiwan, and hereby irrevocably submits to the non-exclusive jurisdiction of such court.



     SECTION 18. Counterparts. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.



 









 





     SECTION 19. Governing Language. This Agreement has been prepared in English and
Chinese. In the event of inconsistencies between the English version and the Chinese version, the
Chinese version shall prevail.



* * * * *




 









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered by its Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	ASYST TECHNOLOGIES INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





	 	 	 	 	 
	 	____________________________________


as Taiwan Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





TAIWANESE TRADEMARK SECURITY AGREEMENT




     This TAIWANESE TRADEMARK SECURITY AGREEMENT, dated as of                     , 2007 (this
“Agreement”), is made by ASYST TECHNOLOGIES, INC., a California corporation (the
“Grantor” or the “Company”), in favor of                      as the Taiwan collateral agent
(together with its successor(s) thereto in such capacity, the “Taiwan Collateral Agent”)
for itself and each of the other Secured Parties (such capitalized term and other capitalized terms
used in this preamble and the recitals below to have the meanings set forth in, or are defined by
reference in, Section 1 below).



W I T N E S S E T H :




     WHEREAS, pursuant to a Credit Agreement, dated as of                     , 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Grantor, Asyst Japan, Inc., a Japanese corporation (“AJI”), Asyst Shinko, Inc., a
Japanese corporation (“ASI”), the Designated Borrowers from time to time party thereto (the
Designated Borrowers, collectively with the Company, AJI and ASI, the “Borrowers”), the
Lenders from time to time party thereto and the Administrative Agent, Lenders and the L/C Issuer
have extended Commitments to make Credit Extensions to the Borrowers; and



     WHEREAS, pursuant to the Credit Agreement, the Grantor is required to execute and deliver this
Agreement and to grant to the Taiwan Collateral Agent a continuing security interest in all of the
Trademark Collateral to secure all Secured Obligations; and



     WHEREAS, the Grantor has duly authorized the execution, delivery and performance of this
Agreement; and



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantor agrees, for the benefit of each Secured Party, as follows:



     SECTION 1. Certain Definitions



     (a) The following terms when used in this Agreement shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof);



     “Agreement” is defined in the preamble.



     “AJI” is defined in the first recital.



     “ASI” is defined in the first recital.



     “Borrowers” is defined in the first recital.



     “Company” is defined in the first recital.



     “Credit Agreement” is defined in the first recital.



 









 





     “Grantor” is defined in the preamble.



     “Intellectual Property Office” means the Intellectual Property Office of the Ministry
of Economic Affairs of the Republic of China.



     “Secured Obligations” is defined in Section 3.



     “Taiwan Collateral Agent” is defined in the preamble.



     “Termination Date” means the date on which all Secured Obligations have been paid in
full in cash, all Letters of Credit have been terminated or expired (or been Cash Collateralized),
all Secured Hedge Agreements have been terminated and all Commitments shall have terminated.



     “Trademarks” is defined in Section 2.



     “Trademark Collateral” is defined in Section 2.



     (b) Other Definitions. Terms for which meanings are provided in the Credit Agreement
are, unless otherwise defined herein or the context otherwise requires, used in this Agreement with
such meanings.



     SECTION 2. Grant of Security Interest. The Grantor hereby pledges to the Taiwan
Collateral Agent, as joint and several creditors under Article 283 of the Civil Code of the
Republic of China for the benefit of the Secured Parties, all of the Grantor’s right, title and
interest throughout the world, whether now or hereafter existing or acquired by the Grantor, in and
to the following (the “Trademark Collateral”) as a continuing security for the due and
punctual payment and performance of the Secured Obligations.



     (a) the trademarks referred to in Schedule I (collectively “Trademarks”);



     (b) the right to sue third parties for past, present and future infringements or dilution of
the Trademarks described in clause (a); and



     (c) all proceeds of, and rights associated with, the foregoing (including proceeds, licenses,
royalties, income, payments, claims, damages and proceeds of infringement suits).



     SECTION 3. Security for Obligations. This Agreement secures all Obligations of
Foreign Obligors, including but not limited to principal, interest, default interest, default
penalties, fees, expenses, disbursements, compensation, expenses for acquiring enforcement titles,
expenses for compulsory execution and participating in distribution of enforcement proceeds
(including but not limited to the commitment fees, arrangement fees, agency fees, operation fees,
insurance premiums advanced by the Taiwan Collateral Agent or any other Secured Party, warehouse
rent, moving expenses, and other expenses) and all damages and other amounts resulting from the non
performance of Obligations of the Grantor (collectively the “Secured Obligations”)



 









 





     SECTION 4. Perfection of Security. With respect to any Trademark Collateral, upon
execution of this Agreement or upon acquisition by the Grantor thereof, the Grantor shall, at its
sole cost and expense, take or cause to be taken all such procedures as are necessary for the
perfection of each of such Trademark Collateral, and take or cause to be taken all further action
that may be necessary or reasonably desired, or that the Taiwan Collateral Agent may reasonably
request, for such purpose. Without limiting the generality of the foregoing, the Grantor shall, at
its sole cost and expense, prepare any and all such documents as are necessary for the registration
or perfection of the security interests in the Trademark Collateral.



     SECTION 5. Representations and Warranties. The Grantor represents and warrants as set
forth below:



     (a) It is a corporation duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation; has the corporate power and authority to own its assets and to
transact its business, and is duly qualified under the laws of each jurisdiction in which
qualification is required.



     (b) `The execution and performance by itself of this Agreement have been duly authorized by
all necessary corporate action and do not and will not (i) require any consent or approval of its
shareholders, (ii) contravene the articles of incorporation or any other constitutive documents of
itself, (iii) violate any provision of any law, rule, or regulation, or (iv) result in a breach of
or constitute a default under any indenture or loan or credit agreement or any other agreement,
lease, or instrument to which it is a party or by which it or its properties may be bound or
affected.



     (c) This Agreement is the legal, valid, and binding obligation of the Grantor, enforceable in
accordance with its respective terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency, and other similar laws affecting creditors’ rights generally.



     (d) No authorization or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required for the execution,
delivery or performance of this Agreement by the Grantor, except filing with the Intellectual
Property Office with respect to the creation of the security interest or perfection of the security
interest created hereunder and application to the court for foreclosure of part or all of the
Trademark Collateral.



     (e) The Trademarks set forth in Schedule I hereto is a complete and accurate list of
all Trademarks issued by the Intellectual Property Office and owned by the Grantor.



     (f) None of the Trademark Collateral has been or is likely to be adjudged invalid or
unenforceable in whole or part and all Trademark Collateral is valid and enforceable.



     (g) It is the sole, legal and beneficial owner of each of the Trademark Collateral, free and
clear of any Lien, claim, option or right of others, except for the security interests created
hereunder, and it has not agreed to encumber or cause or allow to be encumbered any Collateral with
any Lien, claim, option or right of others. The Trademark Collateral is not prohibited from
possession, transfer or pledge and is not seized or subject to any attachment.



 









 





     (h) This Agreement creates in favor of the Secured Parties a valid and perfected first
priority security interest in the Trademark Collateral, securing the payment of the Secured
Obligations, and all filings and registrations or other actions necessary or desirable to perfect
such security interest have been duly made or taken and are in full force and effect.



     (i) The value of each property of the Trademark Collateral was measured by the Grantor or any
other Person in good faith and in a commercially reasonable manner and reasonably reflects the fair
market value thereof.



     (j) All information provided by the Grantor in connection with this Agreement, including the
information set out in Schedule is true and accurate in all material respects and comprehensive,
and there is no matter which renders or could render any of such information untrue, inaccurate or
misleading in any material respect.



     (k) Other than as specified in Schedule II, under the Laws of Republic of China, there is no
requirement that the Taiwan Collateral Agent, in its capacity as pledgee or secured party, or any
of the other Secured Parties qualify to do business in such jurisdiction or comply with the
requirement of any foreign lender statute or to pay any Tax in order to carry out the transactions
contemplated by, receive the benefits of, or enforce the provisions of this Agreement or the other
Loan Documents or the documents provided for therein, nor the Taiwan Collateral Agent or any of the
other Secured Parties will be subject to any other type of taxation in such jurisdiction solely as
the result of the performance of such transactions or the enforcement of any rights or remedies
granted under this Agreement or any of the other Loan Documents.



     (l) The Grantor clearly understands the scope of indebtedness secured under the pledge created
under this Agreement and the Taiwan Collateral Agent has the right to foreclose any of the
Trademark Collateral to pay the Secured Obligations.



     (m) The Grantor hereby represents that it was given a reasonable period of time to review and
understand the provisions of this Agreement in full before having it executed.



     (n) None of the Grantor and the Trademark Collateral listed on Schedule I is or is
likely to be subject to any outstanding consent, settlement, decree, order, injunction, judgment or
ruling restricting the use of such properties.



     SECTION 6. Covenants. Until the occurrence of the Termination Date, the Grantor
shall:



     (a) warrant and defend and cause others to warrant and defend its rights, title and interest
in and to any of the Trademark Collateral for the benefit of the Secured Parties against any claims
and demands of all other Persons whomsoever;



     (b) continue to be the sole, legal and beneficial owner of each of the Trademark Collateral,
free and clear of any Lien, claim, option or right of others, except for the security interests
created hereunder;



 









 





     (c) comply and cause others to comply with all the provisions of any applicable law in order
to establish and maintain any of the security created hereunder as a valid, perfected, first
priority security;



     (d) pay all costs, taxes, and governmental charges in connection with the preparation,
execution or amendment of this Agreement and the creation and perfection of or amendment to any
security interest created hereunder (including, without limitation, registration fees incurred in
connection with the registration of any security interest created hereunder and the recordation of
any change made to any matters recorded on the Intellectual Property Office and reasonable fees and
expenses of the Taiwan Collateral Agent’s counsel relating thereto), and promptly pay or procure
that the payment of all fees, taxes and other expenses whatsoever in respect of any of the
Trademark Collateral, so that any security created hereunder shall at all times be wholly preserved
at the cost of the Grantor and without expense to the Taiwan Collateral Agent or any Secured Party;



     (e) notify or cause to be notified the Taiwan Collateral Agent forthwith if any order or
notice of provisional attachment, provisional attachment for the purpose of assuring collection of
taxes or public imposts or attachment with respect to any of its properties, including the
Trademark Collateral, is dispatched;



     (f) upon completion of the registration of any trademark with the Intellectual Property Office
in its name or upon the filing of an application for trademark in its name with the Intellectual
Property Office, promptly notify the Taiwan Collateral Agent thereof, and in the case of the
registration of a trademark, will, on demand by the Taiwan Collateral Agent, create a security
interest in all of the Grantor’s right, title and interest in and to such registered trademark in
favor of the Secured Parties and perfect or cause to be perfected the security interest so created,
in such manner as the Taiwan Collateral Agent determines to be necessary and appropriate;



     (g) not assign any right, duty, obligation or liability hereunder without the prior written
consent of the Taiwan Collateral Agent;



     (h) take, at its expense, all necessary steps to (i) maintain the validity and enforceability
of any Trademark Collateral and maintain any Trademark Collateral in full force and effect, and
(ii) pursue the registration and maintenance of each trademark now or hereafter included in the
Trademark Collateral, including, without limitation, the payment of required fees and taxes, the
filing of responses to office actions issued by any governmental authorities, the filing of
applications for renewal or extension, the payment of maintenance fees and the participation in
interference, re-examination, opposition, cancellation, infringement and misappropriation
proceedings; and



     (i) not, without the written consent of the Taiwan Collateral Agent, discontinue use of or
otherwise abandon any Trademark Collateral, or abandon any filed application for trademarks, unless
the loss thereof could not reasonably be expected to have a Material Adverse Effect, in which case,
the Grantor will give prompt notice of any such abandonment to the Taiwan Collateral Agent.



 









 





     SECTION 7. Further Assurances.



     (a) The Grantor agrees that from time to time, at the expense of the Grantor, the Grantor will
promptly execute and deliver, or otherwise authenticate, all further instruments and documents, and
take all further action that may be necessary or reasonably desired, or that the Taiwan Collateral
Agent may reasonably request, in order to perfect and protect any security interest created or
purported to be created by the Grantor hereunder or to enable the Taiwan Collateral Agent to
exercise and enforce its rights and remedies hereunder with respect to any Trademark Collateral.



     (b) The Grantor will furnish to the Taiwan Collateral Agent from time to time statements and
schedules further identifying and describing the Trademark Collateral and such other reports in
connection with any Trademark Collateral as the Taiwan Collateral Agent may reasonably request, all
in reasonable detail.



     SECTION 8. Foreclosure. If an Event of Default has occurred and is continuing, the
Taiwan Collateral Agent may foreclose all or any part of the Trademark Collateral and apply the
proceeds of any such foreclosure in accordance with Section 8.03 of the Credit Agreement.



     SECTION 9. Waiver, etc. The Grantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations, this Agreement and any
requirement that any Secured Party protect, secure, perfect or insure any Lien, or any property
subject thereto, or exhaust any right or take any action against any Loan Party or any other Person
(including any other collateral provider) or entity or any Collateral securing the Obligations, as
the case may be.



     SECTION 10. Release of Liens. Upon (i) the Disposition of Trademark Collateral in
accordance with the Credit Agreement or (ii) the occurrence of the Termination Date, the security
interests granted herein shall automatically terminate with respect to (A) such Trademark
Collateral (in the case of clause (i)) or (B) all Trademark Collateral (in the case of
clause (ii)). Upon any such Disposition or termination, the Taiwan Collateral Agent will,
at the Grantor’s sole expense, release without any representations, warranties or recourse of any
kind whatsoever, all Trademark Collateral held by the Taiwan Collateral Agent hereunder, and
execute and deliver to the Grantor such Documents as the Grantor shall reasonably request to
evidence such termination.



     SECTION 11. Taiwan Collateral Agent May Perform. If the Grantor fails to perform any
agreement contained herein, the Taiwan Collateral Agent may, as the Taiwan Collateral Agent deems
necessary to protect any security interest created hereunder in any of the Trademark Collateral or
to protect the value thereof, but without any obligation to do so and without notice, itself
perform, or cause performance of, such agreement, and the expenses of the Taiwan Collateral Agent
incurred in connection therewith shall be payable by the Grantor.



     SECTION 12. Taiwan Collateral Agent’s Duties. The powers conferred on the Taiwan
Collateral Agent hereunder are solely to protect the Secured Parties’ interest in the Trademark
Collateral and shall not impose any duty upon it to exercise any such powers. Except for exercising
reasonable care for any of the Trademark Collateral in its possession and the



 









 







accounting for moneys actually received by it hereunder, the Taiwan Collateral Agent shall
have no duty as to any of the Trademark Collateral, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any of the Trademark
Collateral. The Taiwan Collateral Agent shall be deemed to have exercised reasonable care in the
custody and preservation of any of the Trademark Collateral in its possession if it takes such
action for that purpose as the Grantor reasonably requests in writing at times other than upon the
occurrence and during the continuance of any Event of Default, but failure of the Taiwan Collateral
Agent to comply with any such request at any time shall not in itself be deemed a failure to
exercise reasonable care.



     SECTION 13. Assignments by Secured Parties. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors and permitted
assigns; provided that the Grantor may not assign or transfer its rights or obligations hereunder
without the consent of the Taiwan Collateral Agent. Any Secured Party may assign or otherwise
transfer all or any portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitment, the Loans owing to it and the Note or
Notes, if any, held by it) and other Loan Documents to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted to such Secured
Party herein or otherwise, in each case as provided in Section 10.06 of the Credit Agreement.



     SECTION 14. Amendments. No amendment or waiver of any provision of this Agreement,
and no consent to the departure by the Grantor herefrom, shall in any event be effective unless the
same shall be in writing and signed by the Taiwan Collateral Agent, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given. No
failure on the part of the Taiwan Collateral Agent or any other Secured Party to exercise, and no
delay in exercising any right hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise thereof or the exercise
of any other right.



     SECTION 15. Loan Document. This Agreement is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof, including Article X thereof.



     SECTION 16. Governing Law And Entire Agreement. THIS AGREEMENT WILL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE REPUBLIC OF CHINA. This Agreement and the
other Loan Documents constitute the entire understanding among the parties hereto with respect to
the subject matter hereof and thereof and supersede any prior agreements, written or oral, with
respect thereto.



     SECTION 17. Jurisdiction. The Grantor agrees that any legal action or proceeding
arising out of or relating to this Agreement may be brought in the Taipei District Court, Taipei,
Taiwan, and hereby irrevocably submits to the non-exclusive jurisdiction of such court.



     SECTION 18. Counterparts. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall



 









 







constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.



* * * * *




 









 





     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered by Responsible Officer as of the date first above written.



	 	 	 	 	 
	 	ASYST TECHNOLOGIES INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





	 	 	 	 	 
	 	 	 
	 	

as Taiwan Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





TAIWANESE ACCOUNTS PLEDGE AGREEMENT



This TAIWANESE ACCOUNTS PLEDGE AGREEMENT, dated as of                     , 2007 (this “Agreement”),
is made by ASYST SHINKO TAIWAN, INC. (the “Pledgor”), in favor of                      as the
Taiwan collateral agent (together with its successor(s) thereto in such capacity, the “Taiwan
Collateral Agent”) for itself and each of the other Secured Parties (such capitalized term and
other capitalized terms used in this preamble and the recitals below to have the meanings set forth
in, or are defined by reference in, Section 1 below).




W I T N E S S E T H :



WHEREAS, pursuant to a Credit Agreement, dated as of                    , 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Asyst Technologies, Inc. ( “ATI”), Asyst Japan, Inc., a Japanese corporation
(“AJI”), Asyst Shinko, Inc., a Japanese corporation (“ASI”), the Designated
Borrowers from time to time party thereto (the Designated Borrowers, collectively with ATI, AJI and
ASI, the “Borrowers”), the Lenders from time to time party thereto and the Administrative
Agent, the Lenders and the L/C Issuer have extended Commitments to make Credit Extensions to the
Borrowers; and



WHEREAS, pursuant to the Credit Agreement, the Pledgor is required to execute and deliver this
Agreement and to grant to the Taiwan Collateral Agent a continuing security interest in all of the
Pledged Accounts to secure all Secured Obligations; and



WHEREAS, the Pledgor has duly authorized the execution, delivery and performance of this Agreement;
and



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Pledgor agrees, for the benefit of each Secured Party, as follows:




1. INTERPRETATION





	1.1	 	Definitions and Construction. In this Agreement, unless the context requires
otherwise:
	 
	 	 	“Account Banks” means the banks with which the Pledged Accounts have been
established.
	 
	 	 	“Pledged Accounts” means the deposit accounts of the Pledgor described in the
Schedule I and all sums now or hereafter deposited in such accounts and all additions to or
renewals or replacements thereof (in whatever currency) and all interest or other sums which
may accrue from time to time thereon.
	 
	 	 	“Secured Obligations” is defined in Section 2.2.
	 
	 	 	“Termination Date” means the date on which all Secured Obligations have been paid in
full in cash, all Letters of Credit have been terminated or expired (or been Cash




 









 






	 	 	Collateralized), all Secured Hedge Agreements have been terminated and all Commitments shall
have terminated.






	1.2	 	Terms Defined in the Credit Agreement. Terms for which meanings are provided in the
Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used
in this Agreement with such meanings.





2. PLEDGE





	2.1	 	Pledge. The Pledgor hereby pledges to the Taiwan Collateral Agent, as joint and
several creditors under Article 283 of the Civil Code of the Republic of China, for its
benefit and the ratable benefit of each other Secured Party, each of the Pledged Accounts and
all its right, title, interest and benefit therein and thereto as a continuing security for
the due and punctual payment of the Secured Obligations.
	 
	2.2	 	Security for Obligations. This Agreement secures all Obligations of Foreign
Obligors, including but not limited to principal, interest, default interest, default
penalties, fees, expenses, disbursements, compensation, expenses for acquiring enforcement
titles, expenses for compulsory execution and participating in distribution of enforcement
proceeds (including but not limited to the commitment fees, arrangement fees, agency fees,
operation fees, insurance premiums advanced by the Taiwan Collateral Agent or any other
Secured Party, warehouse rent, moving expenses, and other expenses) and all damages and other
amounts resulting from the non performance of Obligations of the Pledgor (collectively the
“Secured Obligations”).
	 
	2.3	 	Perfection of Pledge. The Pledgor shall, upon the execution of this Agreement,
deliver to the Taiwan Collateral Agent the passbook with respect to each of the Pledged
Accounts and issue a notice of pledge (“Notice of Pledge”) in the form set out in
Appendix 1 to each relevant Account Bank with which a Pledged Account is established.
	 
	2.4	 	Continuing Pledge. The Pledgor shall, by the close of business hours of the last
banking day of each week, provide each Account Bank with a notice of continuing pledge in the
form set forth in Appendix 2 (the “Notice of Continuing Pledge”) that the then current
credit balance of each of the Pledged Accounts is secured by and subject to the security
interest created under this Agreement. The Pledgor hereby appoints the Taiwan Collateral
Agent to be its authorized agent for the purpose of executing in the Pledgor’s name and on the
Pledgor’s behalf the Notice of Continuing Pledge in favor of the Taiwan Collateral Agent for
the benefit of the Secured Parties in respect of the Pledged Accounts held with the Accounts
Banks, in accordance with this Agreement.
	 
	2.5 	 	Discharge. Upon the occurrence of the
Termination Date, the Taiwan Collateral Agent
will, at the Pledgor’s sole expense, release
without any representations, warranties or
recourse of any kind whatsoever, all Pledged
Accounts, and execute and deliver to the Pledgor
such documents as the Pledgor shall reasonably
request to evidence such termination.






 










 






	3.	 	REPRESENTATIONS AND WARRANTIES
	 
	3.1	 	The Pledgor represents and warrants as set forth below:






(a) It is a corporation duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation; has the corporate power and authority to own its assets
and to transact its business, and is duly qualified under the laws of each jurisdiction in
which qualification is required.




(b) The execution and performance by itself of this Agreement have been duly authorized by
all necessary corporate action and do not and will not (i) require any consent or approval
of its shareholders, (ii) contravene the articles of incorporation or any other constitutive
documents of itself, (iii) violate any provision of any law, rule, or regulation, or (iv)
result in a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease, or instrument to which it is a party or by which it
or its properties may be bound or affected.




(c) This Agreement is the legal, valid, and biding obligation of the Pledgor, enforceable in
accordance with its respective terms, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, and other similar laws affecting creditors’
rights generally.




(d) No authorization or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required for the
delivery or performance of this Agreement by the Pledgor except Notice of Pledge and Notice
of Continuing Pledge to the Account Banks and application to the court for foreclosure of
part or all of the Pledged Accounts.




(e) The Pledged Accounts set forth in the Schedule I hereto is a complete and
accurate list of all bank accounts (other than the Excluded Accounts) of the Pledgor in
Taiwan.




(f) None of the Pledged Account has been or is likely to be adjudged invalid or
unenforceable in whole or part and all of the Pledged Accounts are valid and enforceable.




(g) It is the sole, legal and beneficial owner of each of the Pledged Accounts, free and
clear of any Lien, claim, option or right of others, except for the security interests
created hereunder, and it has not agreed to encumber or cause or allow to be encumbered any
Pledged Account with any Lien, claim, option or right of others other than the security
interest created hereunder. The Pledged Accounts are not prohibited from possession,
transfer or pledge and are not seized or subject to any attachment.




(h) This Agreement creates in favor of the Taiwan Collateral Agent for the benefit
of the Secured Parties a valid and perfected first priority security interest in the Pledged
Accounts, securing the payment of the Secured Obligations, and all actions necessary or
desirable to perfect such security interest have been duly made or taken and are in full
force and effect.



 









 






(i) All information provided by the Pledgor in connection with this Agreement, including the
information set out in Schedule I is true and accurate in all material respects and
comprehensive, and there is no matter which renders or could render any of such information
untrue, inaccurate or misleading in any material respect.




(j) Other than as specified in Schedule II, under the Laws of the Republic of China, there
is no requirement that the Taiwan Collateral Agent, in its capacity as pledgee or secured
party, or any of the other Secured Parties qualify to do business in such jurisdiction or
comply with the requirement of any foreign lender statute or to pay any Tax in order to
carry out the transactions contemplated by, receive the benefits of, or enforce the
provisions of this Agreement or the other Loan Documents or the documents provided for
therein, nor will the Taiwan Collateral Agent or any of other Secured Parties will be
subject to any other type of taxation in such jurisdiction solely as the result of the
performance of such transactions or the enforcement of any rights or remedies granted under
this Agreement or any of the other Loan Documents.




(k) The Pledgor clearly understands the scope of indebtedness secured under the pledge
created under this Agreement and the Taiwan Collateral Agent has the right to foreclose any
of the Pledged Accounts to pay the Secured Obligations.




(l) The Pledgor hereby represents that it was given a reasonable period of time to review
and understand the provisions of this Agreement in full before having it executed.




(m) None of the Pledgor and the Pledged Accounts listed on Schedule I is or is likely to be
subject to any outstanding consent, settlement, decree, order, injunction, judgment or
ruling restricting the use of such properties.




	4.	 	UNDERTAKINGS
	 
	4.1	 	Notice Continuing Pledge. The procedure set out in Clause 2.3 of this Agreement to
issue Notice of Continuing Pledge to the Account Banks shall be strictly followed.
	 
	4.2	 	Preservation of Security. Until the occurrence of the Termination Date, the Pledgor
shall:






(a) warrant and defend and cause others to warrant and defend its rights, title and interest
in and to any of the Pledged Accounts for the benefit of the Secured Parties against any
claims and demands of all other Persons whomsoever;




(b) continue to be the sole, legal and beneficial owner of each of the Pledged Accounts,
free and clear of any Lien, claim, option or right of others, except for the security
interests created hereunder;




(c) comply and cause others to comply with all the provisions of any applicable law in order
to establish and maintain any of the security created hereunder as a valid, perfected, first
priority security;




(d) pay all costs, taxes, and governmental charges in connection with the preparation,
execution or amendment of this Agreement and the creation and perfection of or



 









 







amendment to any security interest created hereunder (including, without limitation,
reasonable fees and expenses of the Taiwan Collateral Agent’s counsel relating thereto), and
promptly pay or procure that the payment of all fees, taxes and other expenses whatsoever in
respect of any of the Pledged Account, so that any security created hereunder shall at all
times be wholly preserved at the cost of the Pledgor and without expense to the Taiwan
Collateral Agent or any Secured Party;




(e) notify or cause to be notified the Taiwan Collateral Agent forthwith if any order or
notice of provisional attachment, provisional attachment for the purpose of assuring
collection of taxes or public imposts or attachment with respect to any of its properties,
including the Pledged Accounts is dispatched;




(f) upon opening of a new bank account, promptly notify the Taiwan Collateral Agent thereof,
and will, on demand by the Taiwan Collateral Agent, create a security interest in all of the
Pledgor’s right, title and interest in and to such new bank account in favor of the Taiwan
Collateral Agent for the benefit of the Secured Parties and perfect or cause to be perfected
the security interest so created, in such manner as the Taiwan Collateral Agent determines
to be necessary and appropriate;




(g) not assign any right, duty, obligation or liability hereunder without the prior written
consent of the Taiwan Collateral Agent;




(h) take, at its expense, all necessary steps to (i) maintain the validity and
enforceability of any Pledged Account and maintain any Pledged Account in full force and
effect; and




(i) not, without the written consent of the Taiwan Collateral Agent, discontinue use of or
otherwise abandon any Pledged Account, unless the loss thereof could not reasonably be
expected to have a Material Adverse Effect, in which case, the Pledgor will give prompt
notice of any such abandonment to the Taiwan Collateral Agent.




	5.	 	FORECLOSURE
	 
	 	 	If an Event of Default has occurred and is continuing, the Taiwan Collateral Agent may
foreclose all or any part of the Pledged Accounts and apply the proceeds of any such
foreclosure in accordance with Section 8.03 of the Credit Agreement.






	6.	 	FURTHER ASSURANCES.
	 
	6.1	 	The Pledgor agrees that from time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver, or otherwise authenticate, all further instruments and
documents, and take all further action that may be necessary or reasonably desired, or that
the Taiwan Collateral Agent may reasonably request, in order to perfect and protect any
security interest created or purported to be created by the Pledgor hereunder or to enable the
Taiwan Collateral Agent to exercise and enforce its rights and remedies hereunder with respect
to any Pledged Account.




 









 






	6.2	 	The Pledgor will furnish to the Taiwan Collateral Agent from time to time statements and
schedules further identifying and describing the Pledged Accounts and such other reports in
connection with any Pledged Account as the Taiwan Collateral Agent may reasonably request, all
in reasonable detail.
	 
	7.	 	WAIVER, etc.
	 
	 	 	The Pledgor hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations, this Agreement and any requirement that any Secured
Party protect, secure, perfect or insure any Lien, or any property subject thereto, or
exhaust any right or take any action against any Loan Party or any other Person (including
any other collateral provider) or entity or any Collateral securing the Obligations, as the
case may be.
	 
	8.	 	TAIWAN COLLATERAL AGENT MAY PERFORM.
	 
	 	 	If the Pledgor fails to perform any agreement contained herein, the Taiwan Collateral Agent
may, as the Taiwan Collateral Agent deems necessary to protect any security interest created
hereunder in any of the Pledged Accounts or to protect the value thereof, but without any
obligation to do so and without notice, itself perform, or cause performance of, such
agreement, and the expenses of the Taiwan Collateral Agent incurred in connection therewith
shall be payable by the Pledgor.
	 
	9.	 	TAIWAN COLLATERAL AGENT’S DUTIES.
	 
	 	 	The powers conferred on the Taiwan Collateral Agent hereunder are solely to protect the
Secured Parties’ interest in the Pledged Accounts and shall not impose any duty upon it to
exercise any such powers. Except for exercising reasonable care for any of the Pledged
Accounts in its possession and the accounting for moneys actually received by it hereunder,
the Taiwan Collateral Agent shall have no duty as to any of the Pledged Accounts, or as to
the taking of any necessary steps to preserve rights against any parties or any other rights
pertaining to any of the Pledged Accounts. The Taiwan Collateral Agent shall be deemed to
have exercised reasonable care in the custody and preservation of any of the Pledged
Accounts in its possession if it takes such action for that purpose as the Pledgor
reasonably requests in writing at times other than upon the occurrence and during the
continuance of any Event of Default, but failure of the Taiwan Collateral Agent to comply
with any such request at any time shall not in itself be deemed a failure to exercise
reasonable care.
	 
	10.	 	ASSIGNMENTS BY SECURED PARTIES.
	 
	 	 	This Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns; provided that the Pledgor may not
assign or transfer its rights or obligations hereunder without the consent of the Taiwan
Collateral Agent. Any Secured Party may assign or otherwise transfer all or any portion of
its rights and obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitment, the Loans owing to it and the Note or Notes, if any, held by
it) and other Loan Documents to any other Person, and such other Person shall




 









 






	 	 	thereupon become vested with all the benefits in respect thereof granted to such Secured
Party herein or otherwise, in each case as provided in Section 10.06 of the Credit
Agreement.
	 
	11.	 	AMENDMENTS.
	 
	 	 	No amendment or waiver of any provision of this Agreement, and no consent to the departure
by the Pledgor herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Taiwan Collateral Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given. No
failure on the part of the Taiwan Collateral Agent or any other Secured Party to exercise,
and no delay in exercising any right hereunder, shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right.
	 
	12.	 	LOAN DOCUMENT.
	 
	 	 	This Agreement is a Loan Document executed pursuant to the Credit Agreement and shall
(unless otherwise expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof, including Article X thereof.
	 
	13.	 	GOVERNING LAW AND ENTIRE AGREEMENT.
	 
	 	 	THIS AGREEMENT WILL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE
REPUBLIC OF CHINA. This Agreement and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof and thereof
and supersede any prior agreements, written or oral, with respect thereto.
	 
	14.	 	JURISDICTION.
	 
	 	 	The Pledgor agrees that any legal action or proceeding arising out of or relating to this
Agreement may be brought in the Taipei District Court, Taipei, Taiwan, and hereby
irrevocably submits to the non-exclusive jurisdiction of such court.
	 
	15.	 	COUNTERPARTS.
	 
	 	 	This Agreement may be executed by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall constitute together but one and the
same agreement. Delivery of an executed counterpart of a signature page to this Agreement
by facsimile shall be effective as delivery of a manually executed counterpart of this
Agreement.




 









 










IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed and
delivered by its responsible officer as of the date first above written.




***************************




 









 





	 	 	 	 	 
	 	ASYST TECHNOLOGIES (TAIWAN), LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





	 	 	 	 	 
	 	 	 
	 	 	 	 
	 	as Taiwan Collateral Agent 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





 Appendix 1




NOTICE OF PLEDGE




Date:                     




To: [Name of relevant Account Bank]



We give you notice that Asyst Technologies, (Taiwan) Ltd. as pledgor (the “Pledgor”) has entered
into an Accounts Pledge Agreement with _________ (“Taiwan Collateral Agent”). Pursuant to the
Accounts Pledge Agreement, the Pledgor has pledged in favor of the Taiwan Collateral Agent for the
benefit of certain secured parties under certain credit agreement, the following accounts and all
sums now or hereafter deposited in such accounts and all additions to or renewals or replacements
thereof (in whatever currency) and all interest or other sums which may accrue from time to time
thereon:




Account Name:

Account No.:




Account Name:

Account No.:



You are hereby requested to waive your right of set-off against any balance in the above-mentioned
accounts. Kindly acknowledge receipt of this notice and agreement to waive your right of set-off
by signing in the space provided below.




	 	 	 	 	 
	Asyst Technologies, (Taiwan) Ltd.
 	 



					
	 	 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	 
	 	 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 









 





Acknowledged and agreed by [Name of relevant Account Bank]




	 	 	 	 	 
	 	 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 









 





Appendix 2




NOTICE OF CONTINUING PLEDGE




Date:                     




To: [Name of relevant Account Bank]



In accordance with the Accounts Pledge Agreement dated ___, 2007 between
_________ (“Taiwan Collateral Agent”) and Asyst Technologies, (Taiwan) Ltd. (“the
Pledgor”), the Taiwan Collateral Agent executes this notice of continuing pledge on behalf of
itself and the Pledgor that the following Accounts and their current credit balances as of the date
hereof and interest thereon are and remain subject to the security of the Accounts Pledge
Agreement:




Account Name:

Account No.:




Account Name:

Account No.:



Asyst Technologies, (Taiwan) Ltd.




By its authorized agent,                                         



	 	 	 	 	 
	 	 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	 
	 	 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 









 





TAIWANESE ACCOUNTS PLEDGE AGREEMENT



This TAIWANESE ACCOUNTS PLEDGE AGREEMENT, dated as of ___, 2007 (this “Agreement”),
is made by ASYST SHINKO TAIWAN, INC. (the “Pledgor”), in favor of _________ as the
Taiwan collateral agent (together with its successor(s) thereto in such capacity, the “Taiwan
Collateral Agent”) for itself and each of the other Secured Parties (such capitalized term and
other capitalized terms used in this preamble and the recitals below to have the meanings set forth
in, or are defined by reference in, Section 1 below).




W I T N E S S E T H :



WHEREAS, pursuant to a Credit Agreement, dated as of ___, 2007 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among the Asyst Technologies, Inc. ( “ATI”), Asyst Japan, Inc., a Japanese corporation
(“AJI”), Asyst Shinko, Inc., a Japanese corporation (“ASI”), the Designated
Borrowers from time to time party thereto (the Designated Borrowers, collectively with ATI, AJI and
ASI, the “Borrowers”), the Lenders from time to time party thereto and the Administrative
Agent, the Lenders and the L/C Issuer have extended Commitments to make Credit Extensions to the
Borrowers; and



WHEREAS, pursuant to the Credit Agreement, the Pledgor is required to execute and deliver this
Agreement and to grant to the Taiwan Collateral Agent a continuing security interest in all of the
Pledged Accounts to secure all Secured Obligations; and



WHEREAS, the Pledgor has duly authorized the execution, delivery and performance of this Agreement;
and



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Pledgor agrees, for the benefit of each Secured Party, as follows:





	1.	 	INTERPRETATION
	 
	1.1	 	Definitions and Construction. In this Agreement, unless the context requires
otherwise:
	 
	 	 	“Account Banks” means the banks with which the Pledged Accounts have been
established.
	 
	 	 	“Pledged Accounts” means the deposit accounts of the Pledgor described in the
Schedule I and all sums now or hereafter deposited in such accounts and all additions to or
renewals or replacements thereof (in whatever currency) and all interest or other sums which
may accrue from time to time thereon.
	 
	 	 	“Secured Obligations” is defined in Section 2.2.
	 
	 	 	“Termination Date” means the date on which all Secured Obligations have been paid in
full in cash, all Letters of Credit have been terminated or expired (or been Cash




 









 






	 	 	Collateralized), all Secured Hedge Agreements have been terminated and all Commitments shall
have terminated.
	 
	1.2	 	Terms Defined in the Credit Agreement. Terms for which meanings are provided in the
Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used
in this Agreement with such meanings.






	2.	 	PLEDGE
	 
	2.1	 	Pledge. The Pledgor hereby pledges to the Taiwan Collateral Agent, as joint and
several creditors under Article 283 of the Civil Code of the Republic of China, for its
benefit and the ratable benefit of each other Secured Party, each of the Pledged Accounts and
all its right, title, interest and benefit therein and thereto as a continuing security for
the due and punctual payment of the Secured Obligations.
	 
	2.2	 	Security for Obligations. This Agreement secures all Obligations of Foreign
Obligors, including but not limited to principal, interest, default interest, default
penalties, fees, expenses, disbursements, compensation, expenses for acquiring enforcement
titles, expenses for compulsory execution and participating in distribution of enforcement
proceeds (including but not limited to the commitment fees, arrangement fees, agency fees,
operation fees, insurance premiums advanced by the Taiwan Collateral Agent or any other
Secured Party, warehouse rent, moving expenses, and other expenses) and all damages and other
amounts resulting from the non performance of Obligations of the Pledgor (collectively the
“Secured Obligations”).
	 
	2.3	 	Perfection of Pledge. The Pledgor shall, upon the execution of this Agreement,
deliver to the Taiwan Collateral Agent the passbook with respect to each of the Pledged
Accounts and issue a notice of pledge (“Notice of Pledge”) in the form set out in
Appendix 1 to each relevant Account Bank with which a Pledged Account is established.
	 
	2.4	 	Continuing Pledge. The Pledgor shall, by the close of business hours of the last
banking day of each week, provide each Account Bank with a notice of continuing pledge in the
form set forth in Appendix 2 (the “Notice of Continuing Pledge”) that the then current
credit balance of each of the Pledged Accounts is secured by and subject to the security
interest created under this Agreement. The Pledgor hereby appoints the Taiwan Collateral
Agent to be its authorized agent for the purpose of executing in the Pledgor’s name and on the
Pledgor’s behalf the Notice of Continuing Pledge in favor of the Taiwan Collateral Agent for
the benefit of the Secured Parties in respect of the Pledged Accounts held with the Accounts
Banks, in accordance with this Agreement.
	 
	2.5	 	Discharge. Upon the occurrence of the Termination Date, the Taiwan Collateral Agent
will, at the Pledgor’s sole expense, release without any representations, warranties or
recourse of any kind whatsoever, all Pledged Accounts, and execute and deliver to the Pledgor
such documents as the Pledgor shall reasonably request to evidence such termination.




 









 






	3.	 	REPRESENTATIONS AND WARRANTIES
	 
	3.1	 	The Pledgor represents and warrants as set forth below:






(a) It is a corporation duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation; has the corporate power and authority to own its assets
and to transact its business, and is duly qualified under the laws of each jurisdiction in
which qualification is required.




(b) The execution and performance by itself of this Agreement have been duly authorized by
all necessary corporate action and do not and will not (i) require any consent or approval
of its shareholders, (ii) contravene the articles of incorporation or any other constitutive
documents of itself, (iii) violate any provision of any law, rule, or regulation, or (iv)
result in a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease, or instrument to which it is a party or by which it
or its properties may be bound or affected.




(c) This Agreement is the legal, valid, and biding obligation of the Pledgor, enforceable in
accordance with its respective terms, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, and other similar laws affecting creditors’
rights generally.




(d) No authorization or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required for the
delivery or performance of this Agreement by the Pledgor except Notice of Pledge and Notice
of Continuing Pledge to the Account Banks and application to the court for foreclosure of
part or all of the Pledged Accounts.




(e) The Pledged Accounts set forth in the Schedule I hereto is a complete and
accurate list of all bank accounts (other than the Excluded Accounts) of the Pledgor in
Taiwan.




(f) None of the Pledged Account has been or is likely to be adjudged invalid or
unenforceable in whole or part and all of the Pledged Accounts are valid and enforceable.




(g) It is the sole, legal and beneficial owner of each of the Pledged Accounts, free and
clear of any Lien, claim, option or right of others, except for the security interests
created hereunder, and it has not agreed to encumber or cause or allow to be encumbered any
Pledged Account with any Lien, claim, option or right of others other than the security
interest created hereunder. The Pledged Accounts are not prohibited from possession,
transfer or pledge and are not seized or subject to any attachment.




(h) This Agreement creates in favor of the Taiwan Collateral Agent for the benefit of the
Secured Parties a valid and perfected first priority security interest in the Pledged
Accounts, securing the payment of the Secured Obligations, and all actions necessary or
desirable to perfect such security interest have been duly made or taken and are in full
force and effect.



 









 






(i) All information provided by the Pledgor in connection with this Agreement, including the
information set out in Schedule I is true and accurate in all material respects and
comprehensive, and there is no matter which renders or could render any of such information
untrue, inaccurate or misleading in any material respect.




(j) Other than as specified in Schedule II, under the Laws of the Republic of China, there
is no requirement that the Taiwan Collateral Agent, in its capacity as pledgee or secured
party, or any of the other Secured Parties qualify to do business in such jurisdiction or
comply with the requirement of any foreign lender statute or to pay any Tax in order to
carry out the transactions contemplated by, receive the benefits of, or enforce the
provisions of this Agreement or the other Loan Documents or the documents provided for
therein, nor will the Taiwan Collateral Agent or any of other Secured Parties will be
subject to any other type of taxation in such jurisdiction solely as the result of the
performance of such transactions or the enforcement of any rights or remedies granted under
this Agreement or any of the other Loan Documents.




(k) The Pledgor clearly understands the scope of indebtedness secured under the pledge
created under this Agreement and the Taiwan Collateral Agent has the right to foreclose any
of the Pledged Accounts to pay the Secured Obligations.




(l) The Pledgor hereby represents that it was given a reasonable period of time to review
and understand the provisions of this Agreement in full before having it executed.




(m) None of the Pledgor and the Pledged Accounts listed on Schedule I is or is likely to be
subject to any outstanding consent, settlement, decree, order, injunction, judgment or
ruling restricting the use of such properties.




	4.	 	UNDERTAKINGS
	 
	4.1	 	Notice Continuing Pledge. The procedure set out in Clause 2.3 of this Agreement to
issue Notice of Continuing Pledge to the Account Banks shall be strictly followed.
	 
	4.2	 	Preservation of Security. Until the occurrence of the Termination Date, the Pledgor
shall:






(a) warrant and defend and cause others to warrant and defend its rights, title and interest
in and to any of the Pledged Accounts for the benefit of the Secured Parties against any
claims and demands of all other Persons whomsoever;




(b) continue to be the sole, legal and beneficial owner of each of the Pledged Accounts,
free and clear of any Lien, claim, option or right of others, except for the security
interests created hereunder;




(c) comply and cause others to comply with all the provisions of any applicable law in order
to establish and maintain any of the security created hereunder as a valid, perfected, first
priority security;




(d) pay all costs, taxes, and governmental charges in connection with the preparation,
execution or amendment of this Agreement and the creation and perfection of or



 









 







amendment to any security interest created hereunder (including, without limitation,
reasonable fees and expenses of the Taiwan Collateral Agent’s counsel relating thereto), and
promptly pay or procure that the payment of all fees, taxes and other expenses whatsoever in
respect of any of the Pledged Account, so that any security created hereunder shall at all
times be wholly preserved at the cost of the Pledgor and without expense to the Taiwan
Collateral Agent or any Secured Party;




(e) notify or cause to be notified the Taiwan Collateral Agent forthwith if any order or
notice of provisional attachment, provisional attachment for the purpose of assuring
collection of taxes or public imposts or attachment with respect to any of its properties,
including the Pledged Accounts is dispatched;




(f) upon opening of a new bank account, promptly notify the Taiwan Collateral Agent thereof,
and will, on demand by the Taiwan Collateral Agent, create a security interest in all of the
Pledgor’s right, title and interest in and to such new bank account in favor of the Taiwan
Collateral Agent for the benefit of the Secured Parties and perfect or cause to be perfected
the security interest so created, in such manner as the Taiwan Collateral Agent determines
to be necessary and appropriate;




(g) not assign any right, duty, obligation or liability hereunder without the prior written
consent of the Taiwan Collateral Agent;




(h) take, at its expense, all necessary steps to (i) maintain the validity and
enforceability of any Pledged Account and maintain any Pledged Account in full force and
effect; and




(i) not, without the written consent of the Taiwan Collateral Agent, discontinue use of or
otherwise abandon any Pledged Account, unless the loss thereof could not reasonably be
expected to have a Material Adverse Effect, in which case, the Pledgor will give prompt
notice of any such abandonment to the Taiwan Collateral Agent.




	5.	 	FORECLOSURE
	 
	 	 	If an Event of Default has occurred and is continuing, the Taiwan Collateral Agent may
foreclose all or any part of the Pledged Accounts and apply the proceeds of any such
foreclosure in accordance with Section 8.03 of the Credit Agreement.
	 
	6.	 	FURTHER ASSURANCES.
	 
	6.1	 	The Pledgor agrees that from time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver, or otherwise authenticate, all further instruments and
documents, and take all further action that may be necessary or reasonably desired, or that
the Taiwan Collateral Agent may reasonably request, in order to perfect and protect any
security interest created or purported to be created by the Pledgor hereunder or to enable the
Taiwan Collateral Agent to exercise and enforce its rights and remedies hereunder with respect
to any Pledged Account.




 









 






	6.2	 	The Pledgor will furnish to the Taiwan Collateral Agent from time to time statements and
schedules further identifying and describing the Pledged Accounts and such other reports in
connection with any Pledged Account as the Taiwan Collateral Agent may reasonably request, all
in reasonable detail.
	 
	7.	 	WAIVER, etc.
	 
	 	 	The Pledgor hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations, this Agreement and any requirement that any Secured
Party protect, secure, perfect or insure any Lien, or any property subject thereto, or
exhaust any right or take any action against any Loan Party or any other Person (including
any other collateral provider) or entity or any Collateral securing the Obligations, as the
case may be.
	 
	8.	 	TAIWAN COLLATERAL AGENT MAY PERFORM.
	 
	 	 	If the Pledgor fails to perform any agreement contained herein, the Taiwan Collateral Agent
may, as the Taiwan Collateral Agent deems necessary to protect any security interest created
hereunder in any of the Pledged Accounts or to protect the value thereof, but without any
obligation to do so and without notice, itself perform, or cause performance of, such
agreement, and the expenses of the Taiwan Collateral Agent incurred in connection therewith
shall be payable by the Pledgor.
	 
	9.	 	TAIWAN COLLATERAL AGENT’S DUTIES.
	 
	 	 	The powers conferred on the Taiwan Collateral Agent hereunder are solely to protect the
Secured Parties’ interest in the Pledged Accounts and shall not impose any duty upon it to
exercise any such powers. Except for exercising reasonable care for any of the Pledged
Accounts in its possession and the accounting for moneys actually received by it hereunder,
the Taiwan Collateral Agent shall have no duty as to any of the Pledged Accounts, or as to
the taking of any necessary steps to preserve rights against any parties or any other rights
pertaining to any of the Pledged Accounts. The Taiwan Collateral Agent shall be deemed to
have exercised reasonable care in the custody and preservation of any of the Pledged
Accounts in its possession if it takes such action for that purpose as the Pledgor
reasonably requests in writing at times other than upon the occurrence and during the
continuance of any Event of Default, but failure of the Taiwan Collateral Agent to comply
with any such request at any time shall not in itself be deemed a failure to exercise
reasonable care.
	 
	10.	 	ASSIGNMENTS BY SECURED PARTIES.
	 
	 	 	This Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns; provided that the Pledgor may not
assign or transfer its rights or obligations hereunder without the consent of the Taiwan
Collateral Agent. Any Secured Party may assign or otherwise transfer all or any portion of
its rights and obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitment, the Loans owing to it and the Note or Notes, if any, held by
it) and other Loan Documents to any other Person, and such other Person shall




 









 






	 	 	thereupon become vested with all the benefits in respect thereof granted to such Secured
Party herein or otherwise, in each case as provided in Section 10.06 of the Credit
Agreement.






	11.	 	AMENDMENTS.
	 
	 	 	No amendment or waiver of any provision of this Agreement, and no consent to the departure
by the Pledgor herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Taiwan Collateral Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given. No
failure on the part of the Taiwan Collateral Agent or any other Secured Party to exercise,
and no delay in exercising any right hereunder, shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right.
	 
	12.	 	LOAN DOCUMENT.
	 
	 	 	This Agreement is a Loan Document executed pursuant to the Credit Agreement and shall
(unless otherwise expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof, including Article X thereof.
	 
	13.	 	GOVERNING LAW AND ENTIRE AGREEMENT.
	 
	 	 	THIS AGREEMENT WILL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE
REPUBLIC OF CHINA. This Agreement and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof and thereof
and supersede any prior agreements, written or oral, with respect thereto.
	 
	14.	 	JURISDICTION.
	 
	 	 	The Pledgor agrees that any legal action or proceeding arising out of or relating to this
Agreement may be brought in the Taipei District Court, Taipei, Taiwan, and hereby
irrevocably submits to the non-exclusive jurisdiction of such court.
	 
	15.	 	COUNTERPARTS.
	 
	 	 	This Agreement may be executed by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall constitute together but one and the
same agreement. Delivery of an executed counterpart of a signature page to this Agreement
by facsimile shall be effective as delivery of a manually executed counterpart of this
Agreement.




 









 










IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed and
delivered by its responsible officer as of the date first above written.




*****************************




 









 








	 	 	 	 	 
	 	ASYST SHINKO TAIWAN INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





	 	 	 	 	 
	 	 	 
		
 	 
	 	as Taiwan Collateral Agent 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





 Appendix 1




NOTICE OF PLEDGE




Date:                                         




To: [Name of relevant Account Bank]



We give you notice that Asyst SHINKO TAIWAN, INC.



as pledgor (the “Pledgor”) has entered into an Accounts Pledge Agreement with _________
 (“Taiwan Collateral Agent ”). Pursuant to the Accounts Pledge Agreement, the Pledgor has pledged
in favor of the Taiwan Collateral Agent for the benefit of certain secured parties under certain
credit agreement, the following accounts and all sums now or hereafter deposited in such accounts
and all additions to or renewals or replacements thereof (in whatever currency) and all interest or
other sums which may accrue from time to time thereon:




Account Name:

Account No.:




Account Name:

Account No.:



You are hereby requested to waive your right of set-off against any balance in the above-mentioned
accounts. Kindly acknowledge receipt of this notice and agreement to waive your right of set-off
by signing in the space provided below.




	 	 	 	 	 
	Asyst Shinko Taiwan, Inc.

 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	 
	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Acknowledged and agreed by [Name of relevant Account Bank]




 









 







	 	 	 	 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





Appendix 2




NOTICE OF CONTINUING PLEDGE




Date:                                         




To: [Name of relevant Account Bank]



In accordance with the Accounts Pledge Agreement dated ___, 2007 between _________ (“Taiwan Collateral Agent”) and Asyst Shinko Taiwan Inc. (“the Pledgor”), Taiwan Collateral Agent
executes this notice of continuing pledge on behalf of itself and the Pledgor that the following
Accounts and their current credit balances as of the date hereof and interest thereon are and
remain subject to the security of the Accounts Pledge Agreement:




Account Name:

Account No.:




Account Name:

Account No.:




Asyst Shinko Taiwan Inc.

By its authorized agent,                                         




	 	 	 	 	 
	Asyst Shinko Taiwan, Inc.

 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	 
	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





Exhibit A




Form of Deed of Assignment




DEED OF ASSIGNMENT




Assignees:



Address: [                    ]

Name:     [                   ]

Address: [                    ]

Name:     [                   ]

Address: [                    ]

Name:     [                    ]... ___




     We, the undersigned Assignor, hereby confirm that we assigned to you, the Assignee, the
Japanese patent rights identified below. We hereby consent to your filing unilaterally an
application for recordation of the assignment.


                    Identification of Patent Rights:



Patent Nos.: [                    ]




Assignor:




	 	 	 	 	 	 	 	 	 
	 

	 	Address:
	 	[                    ]	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	          Name:	 	Asyst Technologies, Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Dated this day of                                         , 2007	 	 






	 	 	 	 	 	 	 
	 

	 	Signed*
	 	 

	 	 








 




			
	*	 	Spelling of signatory’s name should be typed under Signature.




19









 










DEED OF ASSIGNMENT




Assignees:


Address: [                    ]

Name: [                    ]

Address: [                    ]

Name: [                    ]

Address: [                    ]

Name: [                    ]... ____




     We, the undersigned Assignor, hereby confirm that we assigned to you, the Assignee, the
Japanese trademark rights identified below. We hereby consent to your filing unilaterally an
application for recordation of the assignment.



     Identification of Trademark Rights:


Trademark Registration Nos.: [                    ]



Assignor:




	 	 	 	 	 	 	 	 	 
	 

	 	Address:
	 	[                    ]	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 	 	Name:	 	Asyst Technologies, Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Dated this day of                     , 2007	 	 






	 	 	 	 	 	 	 
	 

	 	Signed*:	 	 	 	 
	 

	 	 	 	 

	 	 








 




			
	*	 	Spelling of signatory’s name should be typed under Signature.






20









 








	 	 	 	 	 	 	 	 	 
	 	 	ASYST TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 






 









 





	 	 	 	 	 	 	 
	[address]	 	KEYBANKNATIONAL ASSOCIATION as the 

Collateral Agent and a Secured Party	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 
	[address]	 	[Name of the Secured Party] as a Secured Party	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






....



 









 





EXHIBIT H




FORM OF DESIGNATED BORROWER

REQUEST AND ASSUMPTION AGREEMENT




Date:                     ,                     





			
	To:	 	KeyBank National Association, as Administrative Agent

Ladies and Gentlemen:





     This Designated Borrower Request and Assumption Agreement is made and delivered pursuant to
Section 2.14 of that certain Credit Agreement, dated as of July ___, 2007 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Asyst
Technologies, Inc., a California corporation (the “Company”), Asyst Japan, Inc., a Japanese
corporation (“AJI” ) and Asyst Shinko, Inc. (“ASI” and, together with AJI and the
Company, the “Borrowers”), the Designated Borrowers from time to time party thereto, the
Lenders from time to time party thereto, and KeyBank National Association, as Administrative Agent,
L/C Issuer and Swing Line Lender.



     Each of                      (the “Designated Borrower”) and the Company hereby
confirms, represents and warrants to the Administrative Agent and the Lenders that the Designated
Borrower is a Subsidiary of the Company.



     The documents required to be delivered to the Administrative Agent under Section 2.14
of the Credit Agreement will be furnished to the Administrative Agent in accordance with the
requirements of the Credit Agreement.



     Complete if the Designated Borrower is a Domestic Subsidiary: The true and correct US
taxpayer identification number of the Designated Subsidiary is                     .



     Complete if the Designated Borrower is a Foreign Subsidiary: The true and correct unique
identification number that has been issued to the Designated Borrower by its jurisdiction of
organization and the name of such jurisdiction are set forth below:



	 	 	 
	Identification Number	 	Jurisdiction of Organization
	 
	 	 





     The parties hereto hereby confirm that with effect from the date hereof, the Designated
Borrower shall have obligations, duties and liabilities toward each of the other parties to the
Credit Agreement identical to those which the Designated Borrower would have had if the Designated
Borrower had been an original party to the Credit Agreement as a Borrower. The




H-1


FORM OF DESIGNATED BORROWER

REQUEST AND ASSUMPTION AGREEMENT











 







Designated Borrower confirms its acceptance of, and consents to, all representations and
warranties, covenants, and other terms and provisions of the Credit Agreement.



     The parties hereto hereby request that the Designated Borrower be entitled to receive
Revolving Facility Loans under the Credit Agreement, and understand, acknowledge and agree that
neither the Designated Borrower nor the Company on its behalf shall have any right to request any
Revolving Facility Loans for its account unless and until the date five Business Days after the
effective date designated by the Administrative Agent in a Designated Borrower Notice delivered to
the Company and the Lenders pursuant to Section 2.14 of the Credit Agreement.



     This Designated Borrower Request and Assumption Agreement shall constitute a Loan Document
under the Credit Agreement.



     THIS DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



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



	 	 	 	 	 	 	 
	 	 	[DESIGNATED BORROWER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 








H-2 



FORM OF DESIGNATED BORROWER

REQUEST AND ASSUMPTION AGREEMENT










 








EXHIBIT I




FORM OF DESIGNATED BORROWER NOTICE




Date:                     ,                     





			
	To:	 	Asyst Technologies, Inc.

The Lenders party to the Credit Agreement referred to below

Ladies and Gentlemen:





     This Designated Borrower Notice is made and delivered pursuant to Section 2.14 of that
certain Credit Agreement, dated as of July ___, 2007 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the “Agreement;” the terms defined
therein being used herein as therein defined), among Asyst Technologies, Inc., a California
corporation (the “Company”), Asyst Japan, Inc., a Japanese corporation (“AJI” ) and
Asyst Shinko, Inc. (“ASI” and, together with AJI and the Company, the “Borrowers”),
the Designated Borrowers from time to time party thereto, the Lenders from time to time party
thereto, and KeyBank National Association, as Administrative Agent, L/C Issuer and Swing Line
Lender.



     The Administrative Agent hereby notifies Company and the Lenders that effective as of the date
hereof [                                        ] shall be a Designated Borrower and may receive Loans for its
account on the terms and conditions set forth in the Credit Agreement.



     This Designated Borrower Notice shall constitute a Loan Document under the Credit Agreement.



KEYBANK NATIONAL ASSOCIATION,

as Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 








I-3

FORM OF DESIGNATED BORROWER NOTICE











 








EXHIBIT J




FORM OF CLOSING DATE CERTIFICATE




Date:                                         ,                    




To:          KeyBank National Association, as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that Credit Agreement, dated as of July ___, 2007 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among Asyst Technologies, Inc., a
California corporation (the “Company”), Asyst Japan, Inc., a Japanese corporation
(“AJI” ) and Asyst Shinko, Inc. (“ASI” and, together with AJI and the Company, the
“Borrowers”), the Designated Borrowers from time to time party thereto, the Lenders from
time to time party thereto, and KeyBank National Association, as Administrative Agent, L/C Issuer
and Swing Line Lender.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                         of each Loan Party, and that, as such, he/she is authorized to
execute and deliver this Certificate to the Administrative Agent on the behalf of such Loan Party,
and that:



     1. Payment of Outstanding Indebtedness, etc. All Existing Indebtedness (other than
Continuing Debt, the Subordinated Notes, and the letter of credit issued by Bank of America, N.A.
under the Existing Credit Agreement, to the extent permitted under Section 7.02 of the
Agreement), together with all interest, all prepayment premiums and other amounts due and payable
with respect thereto, has been paid in full and the commitments in respect of such Indebtedness
have been terminated and all Liens securing obligations under such Indebtedness have been released.
Attached hereto as Annex I are copies of all executed UCC termination statements (Form
UCC-3), payoff letters or other instruments required to be delivered pursuant to Section 4.01 of
the Credit Agreement.



     2. Financial Information, etc. Attached hereto as Annex II are true and
complete copies of (a) the Audited Financial Statements, (b) unaudited consolidated and
consolidating balance sheets of the Company and its Subsidiaries dated December 31, 2006, and the
related consolidated and consolidating statements of income or operations, shareholders’ equity and
cash flows for the fiscal quarter ended on that date and (c) the consolidated and consolidating
forecasted balance sheet and statements of income and cash flows of the Company and its
Subsidiaries for the three year period from the Closing Date.



     3. Insurance. Attached hereto as Annex III are true and complete copies of
the insurance certificates required to be delivered pursuant to Section 4.01 of the Credit
Agreement.




J-1

FORM OF CLOSING DATE CERTIFICATE









 





     4. Closing Fees, Expenses, etc. All fees required to be paid to the Administrative
Agent and the Arranger on or before the Closing Date and all fees, charges and disbursements of
counsel to the Administrative Agent (directly to such counsel if requested by the Administrative
Agent) to the extent invoiced prior to or on the Closing Date have been paid. All fees required to
be paid to the Lenders on or before the Closing Date have been paid.



     5. Material Adverse Effect. There has been no event or circumstance since the date of
the Audited Financial Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect.



     6. Closing Conditions. All conditions precedent to be satisfied by the Closing Date
as set forth in Article IV of the Credit Agreement (and not otherwise covered by the preceding
paragraphs) have been satisfied in full.




J-2


FORM OF CLOSING DATE CERTIFICATE










 





     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date first written
above.



	 	 	 	 	 	 	 
	 	 	ASYST TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST JAPAN, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST SHINKO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST TECHNOLOGIES TAIWAN LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST SHINKO TAIWAN, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 








J-3
FORM OF CLOSING DATE CERTIFICATE










 






	 	 	 	 	 	 	 
	 	 	ASYST SHINKO AMERICA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 








J-4
FORM OF CLOSING DATE CERTIFICATE










 





ANNEX I TO CLOSING DATE CERTIFICATE




UCC TERMINATION STATEMENTS, PAYOFF LETTERS, ETC.






J-5
FORM OF CLOSING DATE CERTIFICATE










 








ANNEX II TO CLOSING DATE CERTIFICATE




FINANCIAL INFORMATION






J-6













 








ANNEX III TO CLOSING DATE CERTIFICATE




INSURANCE







J-7
FORM OF CLOSING DATE CERTIFICATE










 








EXHIBIT K




FORM OF SOLVENCY CERTIFICATE




Date:                                         ,                    




To:           KeyBank National Association, as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that Credit Agreement, dated as of July ___, 2007 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among Asyst Technologies, Inc., a
California corporation (the “Company”), Asyst Japan, Inc., a Japanese corporation
(“AJI” ) and Asyst Shinko, Inc. (“ASI” and, together with AJI and the Company, the
“Borrowers”), the Designated Borrowers from time to time party thereto, the Lenders from
time to time party thereto, and KeyBank National Association, as Administrative Agent, L/C Issuer
and Swing Line Lender.



          The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
chief financial officer (the “Chief Financial Officer”) of each Loan Party, and that, as
such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on
the behalf of such Loan Party, and that:





     1. The Chief Financial Officer has knowledge of the preparation and negotiation of, and
has reviewed and is familiar with the provisions of, the Loan Documents, the Acquisition
Agreement and Related Documents, and the agreements executed in connection therewith and in
connection with the other Transactions.




     2. The Chief Financial Officer is familiar (both before and after giving effect to the
Transactions) with the finances of each Loan Party and has participated in the preparation
of the financial statements of each Loan Party.




     3. On a pro forma basis after giving effect to the Transactions, as of
the Closing Date each Loan Party is Solvent.



K-1

FORM OF SOLVENCY CERTIFICATE









 





     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date first written
above.



	 	 	 	 	 	 	 
	 	 	ASYST TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST JAPAN, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST SHINKO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST TECHNOLOGIES TAIWAN LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASYST SHINKO TAIWAN, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 








K-2
FORM OF SOLVENCY CERTIFICATE










 






	 	 	 	 	 	 	 
	 	 	ASYST SHINKO AMERICA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 








K-3
FORM OF SOLVENCY CERTIFICATE