Exhibit 10.1





Exhibit 10.1




EXECUTION COPY









CREDIT AGREEMENT




dated as of January 7, 2011




among




A. SCHULMAN, INC.,




The AUSTRALIAN BORROWER, the MALAYSIAN BORROWER and the other

FOREIGN BORROWERS from time to time party hereto,




The LENDERS party hereto,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




J.P. MORGAN EUROPE LIMITED,

and

J.P. MORGAN CHASE BANK BERHAD,

each as a Global Agent,




and




FIFTH THIRD BANK, PNC BANK, NATIONAL ASSOCIATION, RBS CITIZENS, N.A.,

AND WELLS FARGO BANK, NATIONAL ASSOCIATION, as Co-Syndication Agents




J.P. MORGAN SECURITIES LLC

as Sole Bookrunner and Sole Lead Arranger




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I Definitions
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	36	 
	SECTION 1.03. Terms Generally
	 	 	36	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	36	 
	SECTION 1.05. Foreign Currency Calculations
	 	 	37	 
	 
	 	 	 	 
	ARTICLE II The Credits
	 	 	37	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	37	 
	SECTION 2.02. Loans and Borrowings
	 	 	38	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	39	 
	SECTION 2.04. Swingline Loans
	 	 	40	 
	SECTION 2.05. Letters of Credit
	 	 	42	 
	SECTION 2.06. Funding of Borrowings
	 	 	48	 
	SECTION 2.07. Interest Elections
	 	 	49	 
	SECTION 2.08. Termination and Reduction of Commitments
	 	 	50	 
	SECTION 2.09. Increase in Commitments
	 	 	51	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt
	 	 	52	 
	SECTION 2.11. Prepayment of Loans
	 	 	53	 
	SECTION 2.12. Fees
	 	 	54	 
	SECTION 2.13. Interest
	 	 	56	 
	SECTION 2.14. Alternate Rate of Interest
	 	 	57	 
	SECTION 2.15. Increased Costs
	 	 	58	 
	SECTION 2.16. Break Funding Payments
	 	 	59	 
	SECTION 2.17. Taxes
	 	 	60	 
	SECTION 2.18. Intentionally Omitted
	 	 	61	 
	SECTION 2.19. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	62	 
	SECTION 2.20. Mitigation Obligations; Replacement of Lenders
	 	 	63	 
	SECTION 2.21. Designation of Subsidiary Borrowers
	 	 	64	 
	SECTION 2.22. Defaulting Lenders
	 	 	65	 
	 
	 	 	 	 
	ARTICLE III Representations and Warranties
	 	 	67	 
	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	67	 
	SECTION 3.02. Authorization; Enforceability
	 	 	68	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	68	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	69	 
	SECTION 3.05. Properties; Insurance
	 	 	69	 
	SECTION 3.06. Litigation, Environmental and Labor Matters
	 	 	69	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	70	 
	SECTION 3.08. Investment Company Status
	 	 	70	 
	SECTION 3.09. Taxes
	 	 	70	 
	SECTION 3.10. ERISA
	 	 	70	 
	SECTION 3.11. Subsidiaries; Ownership of Capital Stock
	 	 	70	 





 


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TABLE OF CONTENTS





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 3.12. Disclosure
	 	 	70	 
	SECTION 3.13. Liens
	 	 	71	 
	SECTION 3.14. Regulation U
	 	 	71	 
	 
	 	 	 	 
	ARTICLE IV Conditions
	 	 	71	 
	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	71	 
	SECTION 4.02. Each Credit Event
	 	 	73	 
	 
	 	 	 	 
	ARTICLE V Affirmative Covenants
	 	 	73	 
	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	73	 
	SECTION 5.02. Notices of Material Events
	 	 	75	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	76	 
	SECTION 5.04. Payment of Obligations
	 	 	76	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	76	 
	SECTION 5.06. Books and Records; Inspection Rights
	 	 	76	 
	SECTION 5.07. Compliance with Laws
	 	 	76	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	77	 
	SECTION 5.09. Additional Subsidiary Guarantors; Pledges of Equity Interests; Collateral Sharing Agreement
	 	 	77	 
	 
	 	 	 	 
	ARTICLE VI Negative Covenants
	 	 	78	 
	 
	 	 	 	 
	SECTION 6.01. Indebtedness
	 	 	78	 
	SECTION 6.02. Liens
	 	 	80	 
	SECTION 6.03. Fundamental Changes
	 	 	81	 
	SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	83	 
	SECTION 6.05. Swap Agreements
	 	 	83	 
	SECTION 6.06. Restricted Payments
	 	 	84	 
	SECTION 6.07. Transactions with Affiliates
	 	 	84	 
	SECTION 6.08. Restrictive Agreements
	 	 	84	 
	SECTION 6.09. Financial Covenants
	 	 	85	 
	 
	 	 	 	 
	ARTICLE VII Events of Default
	 	 	85	 
	 
	 	 	 	 
	ARTICLE VIII The Agents
	 	 	87	 
	 
	 	 	 	 
	ARTICLE IX Collection Allocation Mechanism
	 	 	90	 
	 
	 	 	 	 
	SECTION 9.01. Implementation of CAM
	 	 	90	 
	SECTION 9.02. Letters of Credit
	 	 	92	 
	 
	 	 	 	 
	ARTICLE X Guarantee
	 	 	94	 





 


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TABLE OF CONTENTS





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE XI Miscellaneous
	 	 	96	 
	 
	 	 	 	 
	SECTION 11.01. Notices
	 	 	96	 
	SECTION 11.02. Waivers; Amendments
	 	 	97	 
	SECTION 11.03. Expenses; Indemnity; Damage Waiver
	 	 	99	 
	SECTION 11.04. Successors and Assigns
	 	 	100	 
	SECTION 11.05. Survival
	 	 	104	 
	SECTION 11.06. Counterparts; Integration; Effectiveness
	 	 	105	 
	SECTION 11.07. Severability
	 	 	105	 
	SECTION 11.08. Right of Setoff
	 	 	105	 
	SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	105	 
	SECTION 11.10. WAIVER OF JURY TRIAL
	 	 	106	 
	SECTION 11.11. Headings
	 	 	106	 
	SECTION 11.12. Confidentiality
	 	 	106	 
	SECTION 11.13. Conversion of Currencies
	 	 	107	 
	SECTION 11.14. USA Patriot Act; European “Know Your Customer” Checks
	 	 	108	 
	SECTION 11.15. English Language
	 	 	109	 
	SECTION 11.16. Borrower Limitations
	 	 	109	 
	SECTION 11.17. Malaysian Stamp Duty Declaration
	 	 	109	 






 


iii









 







SCHEDULES:




	 	 	 	 	 
	Schedule 1.01A

	 	—
	 	Initial Subsidiary Guarantors
	 
	 	 	 	 
	Schedule 1.01B

	 	—
	 	Mandatory Cost Formulae
	 
	 	 	 	 
	Schedule 2.01

	 	—
	 	Lenders and Commitments
	 
	 	 	 	 
	Schedule 2.05

	 	—
	 	Existing Letters of Credit
	 
	 	 	 	 
	Schedule 2.19

	 	—
	 	Payment Instructions
	 
	 	 	 	 
	Schedule 3.01

	 	—
	 	KYC Information for Borrowers
	 
	 	 	 	 
	Schedule 3.11

	 	—
	 	Subsidiaries
	 
	 	 	 	 
	Schedule 6.01

	 	—
	 	Existing Indebtedness
	 
	 	 	 	 
	Schedule 6.02

	 	—
	 	Existing Liens
	 
	 	 	 	 
	Schedule 6.08

	 	—
	 	Restrictive Agreements






EXHIBITS:




	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Assignment and Assumption
	 
	 	 	 	 
	Exhibit B-1

	 	—
	 	Form of Borrowing Subsidiary Agreement
	 
	 	 	 	 
	Exhibit B-2

	 	—
	 	Form of Borrowing Subsidiary Termination
	 
	 	 	 	 
	Exhibit C

	 	—
	 	Form of Issuing Bank Agreement
	 
	 	 	 	 
	Exhibit D

	 	—
	 	Form of Subsidiary Guarantee Agreement
	 
	 	 	 	 
	Exhibit E

	 	—
	 	Form of Collateral Sharing Agreement
	 
	 	 	 	 
	Exhibit F

	 	—
	 	List of Closing Documents





 


iv









 





CREDIT AGREEMENT dated as of January 7, 2011 among A. SCHULMAN, INC., a Delaware corporation
(the “Company”), the AUSTRALIAN BORROWER (as defined below), the MALAYSIAN BORROWER (as
defined below), the other FOREIGN BORROWERS (as defined below) from time to time party hereto, the
LENDERS party hereto, J.P. MORGAN EUROPE LIMITED, as a Global Agent, J.P. MORGAN CHASE BANK BERHAD
(316347-D), as a Global Agent, and JPMORGAN CHASE BANK, N.A., as Administrative Agent.



The parties hereto agree as follows:



ARTICLE I




Definitions




SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:



“ABR”, when used in reference to any Loan or Borrowing to the Company under the US
Tranche, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.



“Acquired Entity” means the assets or Person acquired in connection with a Permitted
Acquisition.



“Adjusted EBITDA” means, as of any date of determination and without duplication: (i)
EBITDA for the Company and its consolidated Subsidiaries for the four (4) fiscal quarter period
ending on the last day of the most recent fiscal quarter ending on or preceding such date of
determination, plus (ii) Pro Forma EBITDA for Permitted Acquisitions consummated after the
Effective Date. Effective upon the consummation of a Permitted Acquisition, Adjusted EBITDA shall
be adjusted to include Pro Forma EBITDA for the applicable target entity that has been acquired.
Effective upon the consummation of any Material Disposition permitted pursuant to Section
6.03, Adjusted EBITDA shall be adjusted on a pro forma basis as of the last day of the fiscal
quarter for which the Company has delivered the financial statements required to be delivered
pursuant to Section 5.01(a) or 5.01(b), as applicable, to remove the impact
(whether positive or negative) that the assets which are the subject of such Material Disposition
permitted pursuant to Section 6.03 have on Adjusted EBITDA.



“Adjusted LIBO Rate” means an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate; provided, that, with respect to Eurocurrency Borrowings denominated
in an Alternative Currency, the Adjusted LIBO Rate shall mean the LIBO Rate.



“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.



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


 


 









 





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



“Agents” means, collectively, the Administrative Agent and the Global Agents, and
“Agent” means any one of them.



“Alternate Base Rate” means, for any day for any Loan, Letter of Credit or other
financial accommodation under the US Tranche that is made to the Company and that specifies or that
requires that the interest rate applicable thereto be the “Alternate Base Rate”, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%, and (c) the Adjusted LIBO Rate for a one month Interest
Period on such day (or if such day is not a Business Day, the immediately preceding Business Day)
plus 1%; provided, that for the avoidance of doubt, the Adjusted LIBO Rate for any day
shall be based on the rate appearing on Reuters Screen LIBOR01 Page (or any successor or substitute
page of such page) at approximately 11:00 a.m. London time on such day. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Adjusted LIBO Rate shall be effective from and including the effective date of such change in the
Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.



“Alternative Currency” means any currency other than US Dollars and Euro that (i) is
approved by the Administrative Agent and the Lenders required to fund extensions of credit in such
currency under the Tranche under which such currency may be available, and (ii) is freely
available, freely transferable and freely convertible into US Dollars and in which dealings in
deposits are carried on in the Applicable Interbank Market, provided that at the time of the
issuance, amendment, renewal or extension of any Letter of Credit denominated in a currency other
than US Dollars and Euro, such other currency is reasonably acceptable to the Administrative Agent
and the Issuing Bank in respect of such Letter of Credit; provided, however, that
notwithstanding the foregoing or anything to the contrary set forth herein, the Loans under the
Malaysian Tranche shall only be available in Ringgit Malaysia. As of the Effective Date,
Australian Dollars and Ringgit Malaysia are Alternative Currencies available under the Foreign
Tranche and the Malaysian Tranche, respectively.



“Alternative Currency LC Exposure” means, at any time, the sum of (a) the US Dollar
Equivalent of the aggregate undrawn and unexpired amount of all outstanding Alternative Currency
Letters of Credit at such time plus (b) the US Dollar Equivalent of the aggregate principal amount
of all LC Disbursements in respect of Alternative Currency Letters of Credit that have not yet been
reimbursed at such time.



“Alternative Currency Letter of Credit” means a Letter of Credit denominated in an
Alternative Currency.


 


2









 





“Applicable Agent” means (a) the Administrative Agent with respect to a Loan, Letter
of Credit or other financial accommodation extended to the Company under the US Tranche, with
respect to any payment hereunder that does not relate to a particular Loan or Borrowing and is not
covered by clauses (b) through (e) hereof, and with respect to the
administration of the transactions evidenced hereby generally, (b) JPMorgan Chase Bank Berhad
with respect to a Loan, Letter of Credit or other financial accommodation extended to the Malaysian
Borrower, and with respect to the general administration of the Malaysian Tranche and the Malaysian
portion of the transactions evidenced hereby, (c) J.P. Morgan Europe Limited with respect to a
Loan, Letter of Credit or other financial accommodation extended to the Australian Borrower or the
Belgian Borrower, (d) J.P. Morgan Europe Limited or such other affiliate of JPMorgan Chase Bank,
N.A. as designated by the Administrative Agent with notice to the Company with respect to a Loan,
Letter of Credit or other financial accommodation extended to any Foreign Borrower not covered in
clauses (b) and (c) above, and (e) J.P. Morgan Europe Limited with respect to the general
administration of the Foreign Tranche, the European portion of the transactions evidenced hereby,
and the non-US/non-Malaysian portion of the transactions evidenced hereby. Each of the Persons
referenced in clauses (b) through (e) hereof shall constitute a “Global Agent” and
collectively shall constitute the “Global Agents”.



“Applicable Interbank Market” means for any Loan, Letter of Credit or other financial
accommodation denominated in (w) Euro, the European interbank market, (x) Australian Dollars, the
Australian interbank market, (y) Ringgit Malaysia, the Kuala Lumpur interbank market, and (z) any
other Alternative Currency or US Dollars, the London interbank market.



“Applicable Interbank Rate” means (x) for any Loan, Letter of Credit or other
financial accommodation made to the Company under the US Tranche or any other Borrower under any
Tranche in a currency other than Euro or Ringgit Malaysia, the Adjusted LIBO Rate, (y) for any
Loan, Letter of Credit or other financial accommodation made to any Borrower in Euro, the EURIBO
Rate and (z) for any Loan, Letter of Credit or other financial accommodation made to the Malaysian
Borrower in Ringgit Malaysia, the KLIBO Rate.



“Applicable Rate” means, for any day, with respect to any ABR Revolving Loan,
Eurocurrency Revolving Loan, any Letter of Credit participation fee under Section 2.12(b), or with
respect to the facility fees payable pursuant to Section 2.12(a), as the case may be, the
applicable rate per annum set forth below under the caption “Facility Fee Rate”,
“Eurocurrency Revolving Loan Spread and Letter of Credit Participation Fee Percentage,” or
“ABR Spread”, as the case may be, based upon the Total Leverage Ratio as reflected in the
then most recently delivered quarterly or annual financials as required under Section 5.01:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Eurocurrency	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Revolving	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Loan Spread	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	and Letter of	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Credit	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Participation	 	 	 	 	 	 	 	 
	Pricing	 	Total Leverage	 	Facility	 	 	Fee	 	 	 	 	 	 	All-in Drawn	 
	Level:	 	Ratio:	 	Fee Rate:	 	 	Percentage:	 	 	ABR Spread	 	 	Pricing	 
	Level I
	 	Less than or equal to 1.50 to 1.00	 	 	0.20	%	 	 	1.30	%	 	 	0.30	%	 	 	1.50	%
	Level II
	 	Greater than 1.50 to 1.00 but less than or equal to 2.00 to 1.00	 	 	0.25	%	 	 	1.50	%	 	 	0.50	%	 	 	1.75	%





 


3









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Eurocurrency	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Revolving	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Loan Spread	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	and Letter of	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Credit	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Participation	 	 	 	 	 	 	 	 
	Pricing	 	Total Leverage	 	Facility	 	 	Fee	 	 	 	 	 	 	All-in Drawn	 
	Level:	 	Ratio:	 	Fee Rate:	 	 	Percentage:	 	 	ABR Spread	 	 	Pricing	 
	Level III
	 	Greater than 2.00 to 1.00 but less than or equal to 2.50 to 1.00	 	 	0.30	%	 	 	1.70	%	 	 	0.70	%	 	 	2.00	%
	Level IV
	 	Greater than 2.50 to 1.00 but less than or equal to 3.00 to 1.00	 	 	0.35	%	 	 	1.90	%	 	 	0.90	%	 	 	2.25	%
	Level V
	 	Greater than 3.00 to 1.00	 	 	0.40	%	 	 	2.10	%	 	 	1.10	%	 	 	2.50	%





For purposes of the foregoing,




(i) if at any time the Company fails to deliver any financials required under Section
5.01 on or before the date any financials are due, then, at the request of the Required
Lenders, Pricing Level V shall be deemed applicable until five (5) Business
Days after such financials, together with all corresponding compliance certificates
required by Section 5.01(c), are actually delivered, after which the Pricing Level shall be
determined in accordance with the table above as applicable;




(ii) adjustments, if any, to the Pricing Level then in effect shall be effective five
(5) Business Days after the Administrative Agent has received the applicable financials and
corresponding compliance certificates required by Section 5.01(c) (it being understood and
agreed that each change in Pricing Level shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the effective
date of the next such change); and




(iii) each determination of the Applicable Rate made by the Administrative Agent in
accordance with the foregoing shall, if reasonably determined, be conclusive and binding on
the Company, all of its Subsidiaries and each Lender.



Notwithstanding the foregoing, during the period beginning on the Effective Date and ending on
the date of delivery of the applicable financials for the fiscal quarter ending February 28, 2011,
the Applicable Rate shall be based on Pricing Level II (unless such financials demonstrate that
Pricing Level III, IV or V should have been applicable during such period, in which case such other
Pricing Level shall be deemed to be applicable during such period), and thereafter, the Applicable
Rate shall be determined in accordance with the preceding table and provisions.



“Approved Fund” has the meaning assigned to such term in Section 11.04.


 


4









 





“Assessment Rate” means, for any day, the annual assessment rate in effect on such day
that is payable by a member of the Bank Insurance Fund classified as “well-capitalized” and within
supervisory subgroup “B” (or a comparable successor risk classification) within the meaning of 12
C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance Corporation for
insurance by such Corporation of time deposits made in US Dollars at the offices of such member in
the United States; provided that if, as a result of any change in any law, rule or
regulation, it is no longer possible to determine the Assessment Rate as aforesaid, then the
Assessment Rate shall be such annual rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.



“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 11.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.



“Attributable Receivables Indebtedness” at any time means the principal amount of
Indebtedness which (a) if a Permitted Receivables Facility is structured as a secured lending
agreement, constitutes the principal amount of such Indebtedness or (b) if a Permitted Receivables
Facility is structured as a purchase agreement, would be outstanding at such time under the
Permitted Receivables Facility if the same were structured as a secured lending agreement rather
than a purchase agreement.



“Australian Borrower” means Courtenay Polymers Pty. Limited, an entity organized under
Australian law.



“Australian Dollars” or “AUD” means the lawful currency of Australia.



“Australia/United States of America Double Tax Convention” means the convention
between the Government of Australia and the Government of the United States of America for the
Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income.



“Australia/United Kingdom Double Tax Convention” means the convention between the
Government of Australia and the Government of the United Kingdom of Great Britain and Northern
Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to
Taxes on Income.



“Australia/France Double Tax Convention” means the convention between the Government
of Australia and the Government of the French Republic for the Avoidance of Double taxation with
Respect to Taxes on Income and the Prevention of Fiscal Evasion.



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


 


5









 





“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.



“Belgian Borrower” means A. Schulman International Services BVBA, an entity organized
under Belgian law.



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



“Borrower” means the Company or any Global Borrower, as applicable, and
“Borrowers” means all of the foregoing; provided, that no Global Borrower shall be
entitled to request a Loan or other financial accommodation under or constitute a Borrower for
purposes of the US Tranche.



“Borrowing” means Loans (including one or more Swingline Loans) of the same Class,
Type and currency, made on the same date and, in the case of Eurocurrency Loans, as to which a
single Interest Period is in effect.



“Borrowing Minimum” means (a) in the case of a Borrowing (other than ABR Revolving
Loans and Swingline Loans) denominated in US Dollars, $1,000,000, (b) in the case of a Borrowing of
ABR Revolving Loans, $1,000,000, (c) in the case of a Borrowing (other than Foreign Tranche
Swingline Loans) denominated in Euro, €1,000,000, (d) in the case of a Borrowing in Ringgit
Malaysia, MYR500,000, (e) in the case of a Borrowing in an Alternative Currency (other than those
referenced above or those in respect of Swingline Loans), the US Dollar Equivalent of $1,000,000,
(f) in the case of a US Tranche Swingline Loan, $250,000, and (g) in the case of a Foreign Tranche
Swingline Loan, €100,000 (or the US Dollar Equivalent thereof).



“Borrowing Multiple” means (a) in the case of a Borrowing (other than Swingline Loans)
denominated in US Dollars, $500,000, (b) in the case of a Borrowing (other than Swingline Loans)
denominated in Euro, €500,000, (c) in the case of a Borrowing in Ringgit Malaysia, MYR500,000, (d)
in the case of a Borrowing in an Alternative Currency (other than those referenced above or those
in respect of Swingline Loans), the US Dollar Equivalent of $500,000, (e) in the case of a US
Tranche Swingline Loan, $50,000, and (f) in the case of a Foreign Tranche Swingline Loan, €100,000
(or the US Dollar Equivalent thereof).



“Borrowing Request” means a request by a Borrower for a Revolving Borrowing in
accordance with Section 2.03.



“Borrowing Subsidiary Agreement” means a Borrowing Subsidiary Agreement substantially
in the form of Exhibit B-1.


 


6









 





“Borrowing Subsidiary Termination” means a Borrowing Subsidiary Termination
substantially in the form of Exhibit B-2.



“Brazilian Indebtedness” means Indebtedness owing by one or more Subsidiaries
organized under the laws of Brazil to third party lenders in an aggregate principal amount not to
exceed the US Dollar Equivalent of $15,000,000 at any time.



“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided, that (a) when used in connection with a Eurocurrency Loan denominated in US
Dollars or any Alternative Currency other than Euro, the term “Business Day” shall also exclude any
day on which banks are not open for dealings in deposits in US Dollars in the Applicable Interbank
Market, (b) when used in connection with a Loan denominated in Euro, the term “Business Day” shall
also exclude (i) any day on which the TARGET payment system is not open for the settlement of
payments in Euro and (ii) any day on which banks in London are authorized or required by law to
remain closed, (c) when used in connection with a Loan denominated in Ringgit Malaysia, the term
“Business Day” shall also exclude any day on which banks in Kuala Lumpur, Malaysia or Hong Kong,
China are authorized or required by law to remain closed, (d) when used in connection with a Loan
denominated in Australian Dollars, the term “Business Day” shall also exclude any day on which
banks in London or Sydney, Australia are authorized or required by law to remain closed, and (e)
with the consent of the Administrative Agent, “Business Day” shall also exclude any day on which
banks in a principal financial center corresponding with a Foreign Borrower or an Alternative
Currency added hereto or provided hereunder subsequent to the Effective Date are authorized or
required by law to remain closed (by way of example only, if Japanese Yen were provided subsequent
to the Effective Date, Tokyo, Japan would be added hereto if consented to by the Administrative
Agent).



“CAM” means the mechanism for the allocation and exchange of interests in Loans,
participations in Letters of Credit and other extensions of credit under the US Tranche and the
Foreign Tranche and collections thereunder established under Article IX.



“CAM Exchange” means the exchange of the Lender’s interests provided for in Article
IX.



“CAM Exchange Date” means the first date on which there shall occur (a) any event
referred to in clause (h) or (i) of Article VII in respect of the Company or (b) an acceleration of
Loans pursuant to Article VII.



“CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of
which (a) the numerator shall be the aggregate US Dollar Equivalent (determined on the basis of
Exchange Rates prevailing on the CAM Exchange Date) of the sum, without duplication, of (i) the
Obligations owed to such Lender (whether or not at the time due and payable) under the US Tranche
and the Foreign Tranche, (ii) the LC Exposure of such Lender under the US Tranche and the Foreign
Tranche and (iii) the Swingline Exposure of such Lender under the US Tranche and the Foreign
Tranche, in each case immediately prior to the occurrence of the CAM Exchange Date (but after
giving effect to Sections 9.01(a)(ii) and (iii)), and (b) the denominator shall be the aggregate US
Dollar Equivalent (as so determined) of the sum, without duplication, of (A) the
Obligations owed to all the Lenders (whether or not at the time due and payable) under the US
Tranche and the Foreign Tranche, (B) the aggregate LC Exposures of all the Lenders under the US
Tranche and the Foreign Tranche, and (C) the aggregate Swingline Exposures of all the Lenders under
the US Tranche and the Foreign Tranche, in each case immediately prior to the occurrence of the CAM
Exchange Date; provided that, for purposes of clause (a) above, the Obligations owed to the
Swingline Lender under the applicable Tranche will be deemed not to include any Swingline Loans
except to the extent provided in clause (a)(iii) above.


 


7









 





“Capitalized Lease Obligations” means, with respect to any Person, all rental
obligations of such Person which, under GAAP, are or will be required to be capitalized on the
books of such Person, in each case taken at the amount thereof accounted for as indebtedness in
accordance with such principles.



“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of Equity Interests representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Company; or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Company by Persons
who were neither (i) nominated by the board of directors of the Company nor (ii) appointed by
directors so nominated.



“Change in Law” means (a) the adoption of any law, rule, regulation or treaty after
the date of this Agreement, (b) any change in any law, rule, regulation or treaty or in the
interpretation or application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b),
by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if
any) with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement; provided,
however, that that notwithstanding anything herein to the contrary, the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith shall be deemed to be a “Change in “Law”,
regardless of the date enacted, adopted or issued.



“Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are US Tranche Revolving Loans, US Tranche Swingline
Loans, Foreign Tranche Revolving Loans, Malaysian Tranche Revolving Loans, or Foreign Tranche
Swingline Loans, and (b) any Commitment, refers to whether such Commitment is a US Tranche
Revolving Commitment, a Foreign Tranche Commitment or a Malaysian Tranche Commitment.



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



“Collateral Agent” means JPMorgan Chase Bank, N.A. or any successor thereto as
described in the Collateral Sharing Agreement, in any case as governed by the Collateral Sharing
Agreement.


 


8









 





“Collateral Sharing Agreement” means the Amended and Restated Collateral Sharing
Agreement attached hereto as Exhibit E (as the same may be amended, restated, supplemented or
otherwise modified from time to time), by and among the Administrative Agent, the Collateral Agent,
the holders of the Senior Notes, the holders of Other Senior Indebtedness from time to time party
thereto, the Borrowers and certain Affiliates thereof, which Amended and Restated Collateral
Sharing Agreement shall be in full force and effect as of the date hereof.



“Commitment” means a US Tranche Revolving Commitment, a Foreign Tranche Commitment or
a Malaysian Tranche Commitment.



“Company” has the meaning assigned to such term in the heading of this Agreement.



“Consolidated Net Worth” means at any time, with respect to the Company, the
consolidated stockholders’ equity of the Company and its Subsidiaries calculated on a consolidated
basis in accordance with GAAP, excluding the effect of the translation of foreign currencies.



“Contingent Obligation” means, as to any Person, any obligation of such Person as a
result of such Person being a general partner of any other Person, unless the underlying obligation
is expressly made non-recourse as to such general partner, and any obligation of such Person
guaranteeing any Indebtedness, Capitalized Lease Obligations, or dividends (“primary obligations”)
of any other Person (the “primary obligor”) in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary
obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the holder of such primary obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Contingent Obligation is
made (or, if less, the maximum amount of such primary obligation for which such Person may be
liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming
such Person is required to perform thereunder) as determined by such Person in good faith.



“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.


 


9









 





“Credit Party” means the Administrative Agent, the Issuing Bank, any Swingline Lender
or any other Lender.



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



“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion
of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party
any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such
Lender notifies the Administrative Agent in writing that such failure is the result of such
Lender’s good faith determination that a condition precedent to funding (specifically identified
and including the particular default, if any) has not been satisfied, (b) has notified the Company
or any Credit Party in writing, or has made a public statement to the effect, that it does not
intend or expect to comply with any of its funding obligations under this Agreement (unless such
writing or public statement indicates that such position is based on such Lender’s good faith
determination that a condition precedent (specifically identified and including the particular
default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within three Business Days
after request by a Credit Party, acting in good faith, to provide a certification in writing from
an authorized officer of such Lender that it will comply with its obligations (and is financially
able to meet such obligations) to fund prospective Loans and participations in then outstanding
Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease
to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such
certification in form and substance satisfactory to it and the Administrative Agent, or (d) has
become the subject of a Bankruptcy Event.



“Domestic Subsidiary” means a Subsidiary incorporated or organized under the laws of
the United States of America, any State thereof or the District of Columbia.



“EBITDA” means, at any time for the Company and its Subsidiaries on a consolidated
basis, and calculated in accordance with GAAP, Net Income for such period plus (a) without
duplication and to the extent deducted in determining Net Income for such period, the sum of (i)
Interest Expense for such period, (ii) income tax expense for such period, (iii) all amounts
attributable to depreciation and amortization expense for such period, and (iv) any extraordinary,
non-recurring or non-cash charges; minus (b) without duplication and to the extent included
in Net Income, any extraordinary, non-recurring or non-cash gains for such period.



“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 11.02).



“EMU Legislation” means the legislative measures of the European Union for the
introduction of, changeover to or operation of the Euro in one or more member states.


 


10









 





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



“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Company or any Subsidiary 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 of the foregoing for which such liability is
assumed or imposed pursuant to any contract, agreement or other consensual arrangement.



“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.



“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated thereunder.



“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Company, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.



“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the failure with respect to any Plan to satisfy the “minimum funding
standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Company or any of its ERISA Affiliates of any liability under Title IV of ERISA or similar law of a
foreign country with respect to the termination of any Plan or Foreign Pension Plan; (e) the
receipt by the Company or any ERISA Affiliate from the PBGC or any similar foreign governmental
authority or a plan administrator of any notice relating to an intention to terminate any Plan or
to appoint a trustee to administer any Plan or Foreign Pension Plans; (f) the incurrence by the
Company or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal of the Company or any of its ERISA Affiliates from any Plan, Multiemployer Plan or
Foreign Pension Plan; or (g) the receipt by the Company or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition upon the Company or any of its ERISA Affiliates of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.


 


11









 





“EU Lending Passport” means the right of passport to provide lending services on a
cross-border basis under the Council Directive of 20 March 2000 relating to the taking up and
pursuit of the business of credit institutions (No 2000/12/EC) in the relevant European Economic
Area member state. For purposes hereof, “EU Lending Passport” shall include each right of
passport to the extent multiple rights of passport are required under the aforementioned Council
Directive to extend credit to Borrowers in their respective jurisdictions of organization.



“EURIBO Rate” means, with respect to any Borrowing in Euro under any Tranche (to the
extent permitted under such Tranche), the rate per annum determined by the applicable Global Agent
at approximately 11:00 a.m., Brussels time, on the Quotation Day for such Interest Period by
reference to the British Bankers’ Association Interest Settlement Rates for deposits in Euro (as
reflected on the applicable Reuters screen page), for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the “EURIBO Rate” shall be the average (rounded upward, if
necessary, to the next 1/100 of 1%) of the respective interest rates per annum at which deposits in
Euro are offered for such Interest Period to major banks in the Applicable Interbank Market by
JPMorgan Chase Bank, N.A. at approximately 11:00 a.m., Brussels time, on the Quotation Day for such
Interest Period.



“Euro” or “€” means the currency constituted by the Treaty on the European
Union and as referred to in the EMU Legislation.



“Eurocurrency”, when used in reference to any Loan or Borrowing, means that such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Applicable Interbank Rate with respect to the applicable currency of such Loan or Borrowing.



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



“Exchange Rate” means on any day, for purposes of determining the US Dollar Equivalent
of any other currency, the rate at which such other currency may be exchanged into US Dollars at
the time of determination on such day on the Bloomberg WCR Page for such currency. In the event
that such rate does not appear on any Bloomberg WCR Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent or the applicable Global Agent, as the case may be, and the
Borrowers, or, in the absence of such an agreement, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative Agent or the applicable
Global Agent in the market where its foreign currency exchange operations in respect of such
currency are then being conducted, at or about such time as the Administrative Agent or the
applicable Global Agent shall elect after determining that such rates shall be the basis for
determining the Exchange Rate, on such date for the purchase of US Dollars for delivery two
Business Days later; provided that if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent or the applicable Global Agent
may use any reasonable method it deems appropriate to determine such rate, and such determination
shall be presumed correct absent manifest error.


 


12









 





“Exchange Rate Date” means, if on such date any outstanding Revolving Credit Exposure
is (or any Revolving Credit Exposure that has been requested at such time would be) denominated in
a currency other than US Dollars, each of:




(i) the last Business Day of each calendar month,




(ii) if an Event of Default has occurred and is continuing, the CAM Exchange
Date and any other Business Day designated as an Exchange Rate Date by the
Administrative Agent in its sole discretion, and




(iii) each date (with such date to be reasonably determined by the
Administrative Agent) that is on or about the date of (i) a Borrowing Request or an
Interest Election Request with respect to any Revolving Borrowing, or (ii) each
request for the issuance, amendment, renewal or extension of any Letter of Credit or
Swingline Loan.



“Excluded Taxes” means, with respect to any payments made by any Loan Party under the
Loan Documents, any of the following Taxes imposed on or with respect to a Recipient, (a) Other
Connection Taxes, (b) in the case of a Recipient (other than a Recipient that becomes a Recipient
by operation of the CAM), US federal withholding Taxes resulting from any law in effect (including
FATCA) on the date on which (i) such Recipient acquires its applicable ownership interest in the
Loan or Commitment (other than a Recipient acquiring its applicable ownership interest pursuant to
Section 2.20(b)) or (ii) such Recipient changes its lending office, except in each case to the
extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to
such Recipient’s assignor immediately before such Recipient became a Recipient with respect to its
applicable ownership interest in the Loan or Commitment or to such Recipient immediately before it
changed its lending office), (c) in the case of a Foreign Tranche Lender (other than a Lender that
becomes a Foreign Tranche Lender by operation of the CAM), any withholding tax that is imposed by
Australia, Belgium or any other jurisdiction in which a Foreign Borrower is organized and into
which jurisdiction Loans are made (or, in each case, any political subdivision thereof) on payments
by a Foreign Borrower from an office within such jurisdiction, in any case to the extent such tax
is in effect and would apply as of the date such Foreign Tranche Lender becomes a party to this
Agreement or relates to payments received by a new lending office designated by such Foreign
Tranche Lender and is in effect and would apply at the time such lending office is designated, (d)
in the case of a Malaysian Tranche Lender, any withholding tax that is imposed by Malaysia (or any
political subdivision thereof) on payments by the Malaysian Borrower from an office within such
jurisdiction, in any case to the extent such tax is in effect and would apply as of the date such
Malaysian Tranche Lender becomes a party to this Agreement or relates to payments received by a new
lending office designated by such Malaysian Tranche Lender and is in effect and would apply at the
time such lending office is designated, or (e) any withholding tax that is attributable to such
Lender’s failure to comply with Section 2.17(e) or (f), except, in the case of clause (b), (c), or
(d) above, to the extent that such withholding tax shall have resulted from the making of any
payment by a Borrower to a location other than the office designated by the Applicable Agent or
such Lender for the receipt of payments of the applicable type from the applicable Borrower.


 


13









 





“Existing Letters of Credit” has the meaning set forth in Section 2.05.



“Exposure” means, with respect to any Lender, such Lender’s US Tranche Revolving
Exposure, Foreign Tranche Exposure, and Malaysian Tranche Exposure.



“Facility Office” has the meaning assigned to such term in Section 2.17(f).



“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement
and any regulations or official interpretations thereof.



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



“Financial Officer” means any of the following officers: chief executive officer,
president, chief financial officer, vice president — finance, or treasurer of the Company.



“Foreign Borrower” means each of the Australian Borrower, the Belgian Borrower, and
any Foreign Subsidiary that has been designated as such pursuant to Section 2.21 and that
has not ceased to be a Foreign Borrower as provided in such Section.



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



“Foreign Pension Plan” means any “pension plan” as defined in Section 3(2) of ERISA
which (i) is maintained or contributed to for the benefit of the employees of a Borrower or any of
its ERISA Affiliates, (ii) under applicable local law, is required to be funded through a trust or
other funding vehicle and (iii) is not covered by ERISA pursuant to Section 4(b)(4) of ERISA.



“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



“Foreign Subsidiary Pledge Agreement” means the Amended and Restated Pledge Agreement,
dated as of January 7, 2011, made by the Company and the Subsidiary Guarantors in favor of the
Collateral Agent, as the same may be amended, restated, supplemented or otherwise modified from
time to time.



“Foreign Tranche” means the Foreign Tranche Commitments, the Foreign Tranche Revolving
Loans, the Foreign Tranche LC Exposure and the Foreign Tranche Swingline Loans.


 


14









 





“Foreign Tranche Commitment” means, with respect to each Foreign Tranche Lender, the
commitment of such Foreign Tranche Lender to make Foreign Tranche Revolving Loans and to acquire
participations in Letters of Credit issued under the Foreign Tranche and Foreign Tranche Swingline
Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Foreign
Tranche Lender’s Foreign Tranche Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.09 and
(c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 11.04. The initial amount of each Foreign Tranche Lender’s Foreign Tranche Commitment is
set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Foreign
Tranche Lender shall have assumed its Foreign Tranche Commitment, as applicable. The aggregate
amount of the Foreign Tranche Commitments on the date hereof is the US Dollar Equivalent of
$45,000,000.



“Foreign Tranche Exposure” means, with respect to any Foreign Tranche Lender at any
time, the US Dollar Equivalent of the sum at such time, without duplication, of (a) such Lender’s
Foreign Tranche Percentage of the sum of the principal amounts of the outstanding Foreign Tranche
Revolving Loans, plus (b) the aggregate amount of such Lender’s Foreign Tranche LC Exposure and
Foreign Tranche Swingline Exposure at such time.



“Foreign Tranche LC Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit issued under the Foreign Tranche denominated in US
Dollars at such time, (b) the US Dollar Equivalent of the aggregate undrawn amount of all
outstanding Letters of Credit issued under the Foreign Tranche denominated in an Alternative
Currency at such time and (c) the aggregate amount of all LC Disbursements in respect of Letters of
Credit issued under the Foreign Tranche that have not yet been reimbursed by or on behalf of the
applicable Borrower at such time. The Foreign Tranche LC Exposure of any Foreign Tranche Lender at
any time shall be its Foreign Tranche Percentage of the total Foreign Tranche LC Exposure at such
time.



“Foreign Tranche Lender” means a Lender with a Foreign Tranche Commitment.



“Foreign Tranche Percentage” means, with respect to any Foreign Tranche Lender, the
percentage of the total Foreign Tranche Commitments represented by such Lender’s Foreign Tranche
Commitment. If the Foreign Tranche Commitments have terminated or expired, the Foreign Tranche
Percentages shall be determined based upon the Foreign Tranche Commitments most recently in effect,
giving effect to any assignments and, pursuant to the following, any Lender’s status as a
Defaulting Lender at the time of determination. Notwithstanding the foregoing, in the case of
Section 2.22 when a Defaulting Lender shall exist, “Foreign Tranche Percentage” shall mean the
percentage of the aggregate of the Foreign Tranche Commitments (disregarding any Defaulting
Lender’s Foreign Tranche Commitment) represented by such Lender’s Foreign Tranche Commitment.



“Foreign Tranche Revolving Borrowing” means a Borrowing comprised of Foreign Tranche
Revolving Loans.


 


15









 





“Foreign Tranche Revolving Loan” means a Loan made by a Foreign Tranche Lender
pursuant to Section 2.01(b). Each Foreign Tranche Revolving Loan made to the
Company shall be denominated in US Dollars and shall be a Eurocurrency Loan, and each Foreign
Tranche Revolving Loan made to a Foreign Borrower shall be denominated in Euro or an Alternative
Currency and shall be a Eurocurrency Loan.



“Foreign Tranche Swingline Exposure” means, at any time, the aggregate principal
amount of all Foreign Tranche Swingline Loans outstanding at such time. The Foreign Tranche
Swingline Exposure of any Foreign Tranche Lender at any time shall be its Foreign Tranche
Percentage of the total Foreign Tranche Swingline Exposure at such time.



“Foreign Tranche Swingline Lender” means each of JPMorgan Chase Bank, N.A., JPMorgan
Chase Bank, N.A., London Branch, and certain other affiliates thereof, each in its capacity as a
lender of Foreign Tranche Swingline Loans hereunder; provided, that a Global Agent will
notify the Company of the applicable Lender or affiliate thereof acting as Foreign Tranche
Swingline Lender for a Foreign Borrower (for example, JPMorgan Chase Bank, N.A., London Branch,
shall, as of the Effective Date, act as Foreign Tranche Swingline Lender for the Belgian Borrower).



“Foreign Tranche Swingline Loan” means a Loan made by the Foreign Tranche Swingline
Lender to the Belgian Borrower, the Australian Borrower or any other Foreign Borrower pursuant to
Section 2.04.



“Foreign Tranche Swingline Rate” means, for any day, in relation to any Foreign
Tranche Swingline Loan, the percentage rate per annum which is equal to the arithmetic mean of the
rates (rounded upwards to four decimal places) as supplied to the applicable Global Agent at its
request quoted by the Reference Banks to leading banks in the Applicable Interbank Market as of (x)
11:00 a.m. Brussels time with respect to the Australian Borrower, the Belgian Borrower or other
Foreign Subsidiaries organized under the laws of Europe or any political subdivision, or (y) such
other Local Time as may be agreed upon by the Administrative Agent, the Global Agents and the
Company based on the jurisdiction of organization of the applicable Foreign Borrower, in each case
as of on the day of the proposed Borrowing for the relevant Foreign Tranche Swingline Loan for the
offering of deposits in the relevant currency for a period comparable to the Interest Period for
the relevant Foreign Tranche Swingline Loan and for settlement on that day. For purposes hereof,
the “Reference Banks” shall mean the principal London offices of JPMorgan Chase Bank, N.A.
and such other Lenders, if any, agreed upon by the Company and the Administrative Agent (with
notice thereof to the other Lenders).



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



“Global Agent” has the meaning set forth in the definition of Applicable Agent.



“Global Borrower” means each of the Malaysian Borrower and each Foreign Borrower.



“Governmental Authority” means the government of the United States of America,
Belgium, the United Kingdom, Australia, Malaysia or government of the jurisdiction in which a
Borrower is organized, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government, including, without limitation, the European
Union.


 


16









 





“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.



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



“Hostile Acquisition” means the acquisition of the Equity Interests of a Person
through a tender offer or similar solicitation of the owners of such Equity Interests which has not
been consented to prior to the occurrence of such acquisition by at least a majority of the board
of directors (or other applicable governing body) of such Person or by similar action if such
Person is not a corporation.



“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others and all other Contingent Obligations of such Person, (h) all
Capitalized Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such
Person as an account party in respect of letters of credit and letters of guaranty and (j) all
obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such Person is not
liable therefor. For the avoidance of doubt, Indebtedness includes all Attributable Receivables
Indebtedness.


 


17









 





“Indemnified Taxes” means Taxes imposed on or with respect to any payment made by any
Loan Party under any Loan Document other than Excluded Taxes and Other Taxes.



“Indian Indebtedness” means Indebtedness owing by one or more Subsidiaries organized
under the laws of India to third party lenders in an aggregate principal amount not to exceed the
US Dollar Equivalent of $5,000,000 at any time.



“Information Memorandum” means the Confidential Information Memorandum dated November
2010 relating to the Company and the Transactions.



“Initial Subsidiary Guarantor” means each Person listed on Schedule 1.01A.



“Interest Coverage Ratio” means, at any time for the Test Period then most recently
ended, the ratio of (x) Adjusted EBITDA to (y) cash Interest Expense minus the interest
portion of the Material Disposition Adjustment Amount, if any.



“Interest Election Request” means a request by the applicable Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.07.



“Interest Expense” means, with reference to any period, the gross interest expense
(including, without limitation, interest expense under Capitalized Lease Obligations), as
determined in accordance with GAAP, for the Company and its consolidated Subsidiaries as shown on
the consolidated income statement of the Company for such period, plus to the extent not set forth
in such income statement, the interest component of all Attributable Receivable Indebtedness of the
Company and its Subsidiaries for such period.



“Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each February, May, August and November, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months’ duration after the first day of such Interest Period, and (c) with
respect to any Swingline Loan, the day that such Loan is required to be repaid; provided, however,
that with respect to the Malaysian Tranche, an Interest Payment Date shall occur on the last day of
the applicable Interest Period.



“Interest Period” means with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three, six or twelve months thereafter, as the applicable Borrower
may elect; provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in
the case of a Eurocurrency Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period pertaining to a Eurocurrency Borrowing that
commences on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of such Borrowing.


 


18









 





“Issuing Bank” means (i) each of the Lenders that issued the Existing Letters of
Credit as contemplated in Section 2.05, and (ii) each Lender acceptable to the Administrative Agent
and the Company (it being understood that JPMorgan Chase Bank, N.A. (and its Affiliates) is
acceptable to the Administrative Agent and the Company) that has entered into an Issuing Bank
Agreement, in each case in its capacity as an issuer of Letters of Credit hereunder, and their
respective successors in such capacity as provided in Section 2.05(i). Each Issuing Bank may, in
its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such
Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate. In all other cases, a reference to the
“Issuing Bank” means any Issuing Bank or each Issuing Bank, as the context may require.



“Issuing Bank Agreement” means an agreement in the form of Exhibit C, or in any other
form reasonably satisfactory to the Administrative Agent, pursuant to which a Lender agrees to act
as an Issuing Bank.



“KLIBO Rate” means, with respect to any Borrowing in Ringgit Malaysia under the
Malaysian Tranche for any Interest Period, the rate per annum determined by the Administrative
Agent at approximately 11:00 a.m., Malaysian time, on the Quotation Day for such Interest Period by
reference to the interbank deposit rates for deposits in Ringgit Malaysia published by Bank Negara
Malaysia (as reflected on the applicable Reuters screen page), for a period equal to such Interest
Period; provided that, to the extent that an interest rate is not ascertainable pursuant to
the foregoing provisions of this definition, the “KLIBO Rate” shall be the average (rounded upward,
if necessary, to the next 1/100 of 1%) of the respective interest rates per annum at which deposits
in the currency of such Borrowing are offered for such Interest Period to major banks in the
Applicable Interbank Market by J.P. Morgan Chase Bank Berhad at approximately 11:00 a.m., Malaysian
time, on the Quotation Day for such Interest Period.



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



“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit denominated in US Dollars at such time, (b) the US Dollar Equivalent
of the aggregate undrawn amount of all outstanding Letters of Credit denominated in an Alternative
Currency at such time and (c) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Company at such time. The LC Exposure of any Lender at any time
shall be the sum of its US Tranche LC Exposure and its Foreign Tranche LC Exposure at such time.



“Lead Arranger” means J.P. Morgan Securities LLC, in its capacity as sole lead
arranger and sole bookrunner.


 


19









 





“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term “Lenders” includes the Swingline Lenders.



“Letter of Credit” means any letter of credit issued pursuant to this Agreement.



“LIBO Rate” means, with respect to any Eurocurrency Borrowing other than in Euro or
Ringgit Malaysia under any Tranche for any Interest Period, the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m., London time, on the Quotation Day for such
Interest Period by reference to the British Bankers’ Association Interest Settlement Rates for
deposits in the currency of such Borrowing (as reflected on the applicable Reuters screen page),
for a period equal to such Interest Period; provided that, to the extent that an interest
rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate”
shall be the average (rounded upward, if necessary, to the next 1/100 of 1%) of the respective
interest rates per annum at which deposits in the currency of such Borrowing are offered for such
Interest Period to major banks in the Applicable Interbank Market by JPMorgan Chase Bank, N.A. at
approximately 11:00 a.m., London time, on the Quotation Day for such Interest Period.



“Licensed Malaysian Bank” means any financial institution licensed by the Minister of
Finance, Malaysia under the Banking & Financial Institutions Act, 1989 of Malaysia, or the Islamic
Banking Act, 1983 of Malaysia.



“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset.



“Loan Documents” means this Agreement, each Borrowing Subsidiary Agreement, each
Borrowing Subsidiary Termination, the Subsidiary Guarantee Agreement, the Foreign Subsidiary Pledge
Agreement, each local-law governed pledge agreement (and related documentation) in respect of
Equity Interests pledged to the Collateral Agent, the Collateral Sharing Agreement and each
promissory note delivered pursuant to this Agreement.



“Loan Parties” means the Borrowers and the Subsidiary Guarantors.



“Loans” means the loans made by the Lenders to the Borrowers pursuant to this
Agreement.



“Local Time” means (a) with respect to a Loan, Borrowing or Letter of Credit extended
or issued to the Company under the US Tranche, New York City time, (b) with respect to any Loan,
Borrowing or Letter of Credit under the Foreign Tranche, (1) London time with respect to the
Australian Borrower or any Foreign Borrower organized under the laws of Europe or a political
subdivision thereof, and (2) any other time agreed upon by the Company, the Administrative Agent,
and the Global Agents for any Foreign Borrower not organized under the
laws of Australia or Europe (or, in each case, any political subdivision thereof), and (c)
with respect to any Loan or Borrowing under the Malaysian Tranche, Malaysian time.


 


20









 





“Malaysian Borrower” means ICO Polymers (Malaysia) Sdn. Bhd., an entity organized
under Malaysian law.



“Malaysian Tranche” means the Malaysian Tranche Commitments and the Malaysian Tranche
Revolving Loans.



“Malaysian Tranche Commitment” means, with respect to each Malaysian Tranche Lender,
the commitment of such Malaysian Tranche Lender to make Malaysian Tranche Revolving Loans,
expressed as an amount representing the maximum aggregate amount of such Malaysian Tranche Lender’s
Malaysian Tranche Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.09 and (c) reduced
or increased from time to time pursuant to assignments by or to such Lender pursuant to Section
11.04. The initial amount of each Malaysian Tranche Lender’s Malaysian Tranche Commitment is set
forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Malaysian
Tranche Lender shall have assumed its Malaysian Tranche Commitment, as applicable. The aggregate
amount of the Malaysian Tranche Commitments on the date hereof is the US Dollar Equivalent of
$5,000,000.



“Malaysian Tranche Exposure” means, with respect to any Malaysian Tranche Lender at
any time, the US Dollar Equivalent of the sum at such time, without duplication, of such Lender’s
Malaysian Tranche Percentage of the principal amounts of the outstanding Malaysian Tranche
Revolving Loans.



“Malaysian Tranche Lender” means a Lender with a Malaysian Tranche Commitment that is
a Licensed Malaysian Bank.



“Malaysian Tranche Percentage” means, with respect to any Malaysian Tranche Lender,
the percentage of the total Malaysian Tranche Commitments represented by such Lender’s Malaysian
Tranche Commitment. If the Malaysian Tranche Commitments have terminated or expired, the Malaysian
Tranche Percentages shall be determined based upon the Malaysian Tranche Commitments most recently
in effect, giving effect to any assignments and, pursuant to the following, any Lender’s status as
a Defaulting Lender at the time of determination. Notwithstanding the foregoing, in the case of
Section 2.22 when a Defaulting Lender shall exist, “Malaysian Tranche Percentage” shall mean the
percentage of the aggregate of the Malaysian Tranche Commitments (disregarding any Defaulting
Lender’s Malaysian Tranche Commitment) represented by such Lender’s Malaysian Tranche Commitment.



“Malaysian Tranche Revolving Borrowing” means a Borrowing comprised of Malaysian
Tranche Revolving Loans.



“Malaysian Tranche Revolving Loan” means a Loan made by a Malaysian Tranche Lender
pursuant to Section 2.01(c). Each Malaysian Tranche Revolving Loan made to the Malaysian Borrower
shall be denominated in an Alternative Currency and shall be a Eurocurrency Loan.


 


21









 





“Mandatory Cost” is described in Schedule 1.01B.



“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
or financial condition of the Company and the Subsidiaries, taken as a whole, (b) the ability of
the Borrowers to perform any of their respective obligations under this Agreement or (c) the rights
of or benefits available to the Lenders under this Agreement and the other Loan Documents.



“Material Disposition” means any sale, lease, transfer or other disposition of a
Person’s operating division, line of business or similar business unit or department with assets
having a fair market value in excess of $40,000,000.



“Material Disposition Adjustment Amount” means, in conjunction with any reduction of
Adjusted EBITDA for any period as a result of a Material Disposition, an amount equal to the
principal amount of Indebtedness repaid as part of such Material Disposition as well as interest
paid in cash on such Indebtedness; provided, that such Indebtedness shall be required to
have been outstanding during the pro forma reporting period being affected by such Material
Disposition, and such interest shall be required to have been paid during such pro forma reporting
period.



“Material Domestic Subsidiary” means, at any time, any Domestic Subsidiary of the
Company with assets equal to or in excess of $25,000,000; provided that if, at any time,
all of the Company’s Domestic Subsidiaries that are not Material Domestic Subsidiaries (the
“Non-Material Domestic Subsidiaries”), taken as a whole, would constitute a Subsidiary
that, together with the total assets of such Non-Material Domestic Subsidiaries’ consolidated
Subsidiaries, has assets equal to or greater than $50,000,000, then the Company shall designate one
or more additional Domestic Subsidiaries as Material Domestic Subsidiaries to the effect that,
after such designation, all of the remaining Non-Material Domestic Subsidiaries, taken as a whole,
would not have aggregate assets equal to or in excess of $45,000,000.



“Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of any
Borrower or any Subsidiary in an aggregate principal amount exceeding $25,000,000. For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of any Borrower or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Borrower or such Subsidiary would be required
to pay if such Swap Agreement were terminated at such time.



“Maturity Date” means January 7, 2016.



“Moody’s” means Moody’s Investors Service, Inc.



“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA with respect to which the Company or any of its ERISA Affiliates may have any liability,
contingent or otherwise.


 


22









 





“Net Debt” means, on any date for the Company and its Subsidiaries on a consolidated
basis, the excess, if any, of Indebtedness for the Company and its consolidated Subsidiaries
over the Net Debt Cash Amount then available.



“Net Debt Cash Amount” means, on any date, that portion of the Company’s and its
consolidated Subsidiaries’ aggregate cash and cash equivalents in excess of $25,000,000 that is
reflected on the consolidated balance sheet of the Company.



“Net Debt Leverage Ratio” means, at any time for the Test Period then most recently
ended, the ratio of (x) Net Debt minus the principal portion of the Material Disposition
Adjustment Amount, if any, to (y) Adjusted EBITDA.



“Net Income” means, for any period, the consolidated net income (or loss) of the
Company and its consolidated Subsidiaries as determined in accordance with GAAP; provided,
that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Company or is merged into or consolidated with the Company or any of
its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of the
Company) in which the Company or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by the Company or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the
Company to the extent that the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any contractual obligations (other than
under any Loan Document) or applicable law.



“Non-Loan Party Debt Limit” means Indebtedness of Subsidiaries that are not Loan
Parties in an aggregate outstanding principal amount equal to (x) $95,000,000 minus (y) the
aggregate outstanding principal amount of the Brazilian Indebtedness, the Indian Indebtedness, and
the Specified 6.01 Indebtedness.



“Non-Material Domestic Subsidiary” has the meaning given to such term in the
definition of Material Domestic Subsidiary.



“Obligations” means (a) the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans made to any Borrower, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to
be made by any Borrower under this Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of disbursements, interest thereon and obligations
to provide cash collateral, and (iii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding), of the Borrowers under this Agreement and the other Loan Documents, and (b) unless
otherwise agreed upon in writing by the applicable Lender party thereto, the due and punctual
payment and performance of all obligations of the Company or any Subsidiary, monetary or otherwise,
under each Swap Agreement entered into with any
counterparty that was a Lender (or an Affiliate thereof) at the time such Swap Agreement was
entered into.


 


23









 





“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a
result of any present or former connection between such Recipient and the jurisdiction imposing
such Taxes (other than a connection arising solely from such Recipient having executed, delivered,
enforced, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, or engaged in any other transaction pursuant to, or enforced,
this Agreement or any Loan Document, or sold or assigned an interest in any this Agreement or any
Loan Document), including branch profits taxes imposed by the United States or any similar tax
imposed by any other jurisdiction in which the applicable Borrower is located.



“Other Senior Indebtedness” means any Indebtedness of the Company or any Subsidiary
thereof (i) with a payment and Lien priority that is pari passu with and otherwise equal to the
Obligations (and that does not constitute subordinated, junior, second-lien or similar
Indebtedness), (ii) that is subject to the Collateral Sharing Agreement (including, without
limitation, the holders thereof and any Liens granted in respect thereof), and (iii) when incurred,
was incurred in compliance with the terms of this Agreement, including, without limitation, pro
forma compliance with Section 6.09 hereof, in each case as such Indebtedness may be replaced or
refinanced so long as no Default of Event of Default is then outstanding or results therefrom.



“Other Taxes” means any present or future stamp, court, documentary, intangible,
recording, filing or similar excise or property Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, or from the registration,
receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or
any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an
assignment (other than an assignment pursuant to Section 2.20(b)).



“Parent” means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.



“Participant” has the meaning set forth in Section 11.04.



“Participant Register” has the meaning assigned to such term in Section 11.04.



“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.



“Permitted Acquisition” means any acquisition (whether by purchase, merger,
consolidation or otherwise but excluding in any event a Hostile Acquisition) or series of related
acquisitions by the Company or any Subsidiary of all or substantially all the assets of, or more
than fifty percent (50%) of the Equity Interests in, a Person or division or line of business of a
Person if, at the time of and immediately after giving effect thereto, (a) no Default or Event of
Default has occurred and is continuing or would arise after giving effect thereto, (b) such Person
or division or line of business is engaged in a type of business that complies with the
requirements of Section 6.03, (c) all actions required to be taken with respect to such acquired or
newly formed Subsidiary under Section 5.09 shall have been taken (including actions which may
be required to be taken by an existing Subsidiary as a result of such acquisition), and (d)
for any acquisition where the consideration therefor exceeds $60,000,000, the Company and its
Subsidiaries are in compliance, on a pro forma basis reasonably acceptable to the Administrative
Agent (as demonstrated in a written compliance certificate) after giving effect to such
acquisition, with the covenants contained in Section 6.09 recomputed as of the last day of the most
recently ended fiscal quarter of the Company for which financial statements are available, as if
such acquisition (and any related incurrence or repayment of Indebtedness, with any new
Indebtedness being deemed to be amortized over the applicable testing period in accordance with its
terms) had occurred on the first day of each relevant period for testing such compliance.


 


24









 





“Permitted Encumbrances” means:



(a) Liens imposed by law for taxes that are not yet due or are being contested in compliance
with Section 5.04;



(b) carriers’, suppliers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other
like Liens imposed by law, arising in the ordinary course of business and securing obligations that
are not overdue by more than 30 days or are being contested in compliance with Section 5.04;



(c) pledges and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security or employment laws or regulations;



(d) Liens securing the performance of bids, tenders, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;



(e) judgment liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII;



(f) easements, zoning restrictions, rights-of-way, use restrictions, minor defects or
irregularities in title, reservations (including reservations in any original grant from any
government of any water or mineral rights or interests therein) and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Company or any Subsidiary;



(g) Liens in favor of payor banks having a right of setoff, revocation, refund or chargeback
with respect of money or instruments of the Company or any Subsidiary on deposit with or in
possession of such bank;



(h) the Lien created under the Foreign Subsidiary Pledge Agreement; and



(i) Liens granted by (1) a Loan Party to another Loan Party, and (2) a Subsidiary that is not
a Loan Party to a Loan Party.


 


25









 





“Permitted Investments” means:



(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), any
member state of the European Union, or any other sovereign nation not targeted for sanctions by the
Office of Foreign Asset Control of the United States Department of the Treasury so long as the full
faith and credit of such nation is pledged in support thereof;



(b) investments in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, one of the two highest credit ratings obtainable
from S&P or from Moody’s;



(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any domestic or foreign
commercial bank which has a combined capital and surplus of not less than $250,000,000;



(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria described in clause (c) above;



(e) money market funds that (i) comply with the criteria set forth in Securities and Exchange
Commission Rule 2a-7 under the Investment Company Act of 1940, and (ii) are rated one of the two
highest credit ratings obtainable from S&P and Moody’s; or



(f) investments in funds of any Societe d’Investissement a Capital Variable or Fonds Commun de
Placement maintained by a financial institution meeting the criteria described in clause (c) above
and that invests primarily in cash and cash equivalents.



“Permitted Receivables Facility” means the receivables facility or facilities created
under the Permitted Receivables Facility Documents, providing for the sale or pledge by the Company
and/or one or more other Receivables Sellers of Permitted Receivables Facility Assets (thereby
providing financing to the Company and the Receivables Sellers) to the Receivables Entity (either
directly or through another Receivables Seller), which in turn shall sell or pledge interests in
the respective Permitted Receivables Facility Assets to third-party investors pursuant to the
Permitted Receivables Facility Documents (with the Receivables Entity permitted to issue investor
certificates, purchased interest certificates or other similar documentation evidencing interests
in the Permitted Receivables Facility Assets) in return for the cash used by the Receivables Entity
to purchase the Permitted Receivables Facility Assets from the Company and/or the respective
Receivables Sellers, in each case as more fully set forth in the Permitted Receivables Facility
Documents.



“Permitted Receivables Facility Assets” means (a) Receivables (whether now existing or
arising in the future) of the Company and its Subsidiaries which are transferred or pledged to the
Receivables Entity pursuant to the Permitted Receivables Facility and any related Permitted
Receivables Related Assets which are also so transferred or pledged to the Receivables
Entity and all proceeds thereof and (b) loans to the Company and its Subsidiaries secured by
Receivables (whether now existing or arising in the future) of the Company and its Subsidiaries
which are made pursuant to the Permitted Receivables Facility.


 


26









 





“Permitted Receivables Facility Documents” means each of the documents and agreements
entered into in connection with the Permitted Receivables Facility, including all documents and
agreements relating to the issuance, funding and/or purchase of certificates and purchased
interests, all of which documents and agreements shall be in form and substance reasonably
satisfactory to the Administrative Agent, in each case as such documents and agreements may be
amended, modified, supplemented, refinanced or replaced from time to time so long as (a) any such
amendments, modifications, supplements, refinancings or replacements do not impose any conditions
or requirements on the Company or any of its Subsidiaries that are more restrictive in any material
respect than those in existence immediately prior to any such amendment, modification, supplement,
refinancing or replacement, (b) any such amendments, modifications, supplements, refinancings or
replacements are not adverse in any way to the interests of the Lenders and (c) any such
amendments, modifications, supplements, refinancings or replacements are otherwise in form and
substance reasonably satisfactory to the Administrative Agent.



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



“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective, and such prime rate need not be the lowest interest rate
charged by JPMorgan Chase Bank, N.A. in respect of loans or other extensions of credit.



“Pro Forma EBITDA” means, with respect to any target entity acquired pursuant to a
Permitted Acquisition, the amount of the Target EBITDA of such target for the most recent trailing
four (4) fiscal quarter period ending as of the last day of the fiscal quarter preceding the
closing of the respective Permitted Acquisition for which financial statements are available,
adjusted as provided herein. Such amount shall be determined by the Company and shall be subject to
the review of the Administrative Agent acting in good faith, based upon and derived from financial
information delivered to the Administrative Agent prior to the consummation of such Permitted
Acquisition. In each instance, the historical Target EBITDA of such target shall be adjusted by an
amount which gives effect to the prorating of any year end adjustments made to the most recent
annual financial statements of such target and which should have been accrued during such year in
accordance with GAAP, all of which shall be reasonably determined by the Company, and reviewed by
the Administrative Agent in good faith (Pro Forma EBITDA for
such target as calculated as of such closing being referred to as the “Initial Pro Forma
EBITDA”). After the closing of such Permitted Acquisition and unless otherwise agreed by the
Administrative Agent and the Company, Pro Forma EBITDA with respect thereto shall equal Initial Pro
Forma EBITDA multiplied by a fraction the numerator of which is three hundred sixty five (365) less
the number of days after the closing of the Permitted Acquisition included in any period for which
financial statements have been delivered and the denominator of which is three hundred sixty five
(365).


 


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“Qualified Foreign Tranche Lender” means a person who is either:



(a) a resident of Australia who does not provide accommodation under this Agreement in
carrying on a business at or through a permanent establishment outside Australia; or



(b) a person (“Tax Qualified Bank”) that:




(i) is a resident of the United States of America, the United Kingdom or France for the
purposes of the Australia/United States of America Double Tax Convention, the
Australia/United Kingdom Double Tax Convention or the Australia/France Double Tax Convention
(as the case may be) and, in relation to a resident of the United States of America, is
entitled to the benefits of the Australian/United States of America Double Tax Convention;




(ii) is a “financial institution” for the purposes of the Australia/United States of
America Double Tax Convention, the Australia/United Kingdom Double Tax Convention or the
Australia/France Double Tax Convention, as applicable; and




(iii) is unrelated to, and dealing wholly independently with, the Australian Borrower
for the purposes of the Australia/United States of America Double Tax Convention, the
Australia/United Kingdom Double Tax Convention or the Australia/France Double Tax
Convention, as applicable. The Company may from time to time approve further classes of
persons as Qualified Foreign Tranche Lender by notice to the Global Agent, (a “Qualified
Foreign Tranche Approval”).




If, in relation to the Foreign Tranche, a Tax Qualified Bank:




(i) does not beneficially derive the interest paid under the Foreign Tranche;
or




(ii) has entered into arrangements involving back-to-back loan(s) or other
arrangement that is economically equivalent and intended to have a similar effect to
back-to-back loan(s),



then the Tax Qualified Bank will not to be a Qualified Foreign Tranche Lender.


 


28









 






The Company will not unreasonably withhold its consent to a request for a Qualified Foreign
Tranche Approval (provided that the Company will be deemed to be acting reasonably in
denying a Qualified Foreign Tranche Approval if, were the Qualified
Foreign Tranche Approval to be granted, the Australian Borrower would be required to
withhold or deduct any amount on account of Taxes levied or assessed in or on behalf of the
Commonwealth of Australia in respect of payments made under this Agreement).



“Quotation Day” means, in relation to any period for which an interest rate is to be
determined:




(a) if the currency is in Euro, two TARGET Days and two London Business Days (to the
extent the two are not the same) before the first day of that period; or




(b) for US Dollars or any Alternative Currency other than Euro, two Business Days
before the first day of that period; provided, that a Quotation Day under the
Malaysian Tranche shall be the first day of the applicable Interest Period,



unless market practice differs in the Applicable Interbank Market for a currency, in which case the
Quotation Day for that currency will be determined by the Applicable Agent in accordance with
market practice in the Applicable Interbank Market (and if quotations would normally be given by
leading banks in the Applicable Interbank Market on more than one day, the Quotation Day will be
the last of those days).



“Receivables” means all accounts receivable (including, without limitation, all rights
to payment created by or arising from sales of goods, leases of goods or the rendition of services
rendered no matter how evidenced whether or not earned by performance).



“Receivables Entity” means a wholly-owned Subsidiary of the Company which engages in
no activities other than in connection with the financing of accounts receivable of the Receivables
Sellers and which is designated (as provided below) as the “Receivables Entity” (a) no
portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is
guaranteed by the Company or any other Subsidiary of the Company (excluding guarantees of
obligations (other than the principal of, and interest on, Indebtedness)) pursuant to Standard
Securitization Undertakings, (ii) is recourse to or obligates the Company or any other Subsidiary
of the Company in any way (other than pursuant to Standard Securitization Undertakings) or (iii)
subjects any property or asset of the Company or any other Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings, (b) with which neither the Company nor any of its Subsidiaries has any
contract, agreement, arrangement or understanding (other than pursuant to the Permitted Receivables
Facility Documents (including with respect to fees payable in the ordinary course of business in
connection with the servicing of accounts receivable and related assets)) on terms less favorable
to the Company or such Subsidiary than those that might be obtained at the time from persons that
are not Affiliates of the Company, and (c) to which neither the Company nor any other Subsidiary of
the Company has any obligation to maintain or preserve such entity’s financial condition or cause
such entity to achieve certain levels of operating results. Any such designation shall be
evidenced to the Administrative Agent by filing with the Administrative Agent an officer’s
certificate of the Company certifying that, to the best of such officer’s knowledge and belief
after consultation with counsel, such designation complied with the foregoing conditions.


 


29









 





“Recipient” means, as applicable, (a) the Agents, (b) any Lender (and, in the case of
a Lender that is classified as a partnership for U.S. Federal tax purposes, a Person treated as the
beneficial owner thereof for US federal tax purposes) and (c) any Issuing Bank.



“Receivables Sellers” means the Company and/or those Subsidiaries that are from time
to time party to the Permitted Receivables Facility Documents.



“Register” has the meaning assigned to such term in Section 11.04.



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



“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing greater than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time.



“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Company or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests in the Company or any Subsidiary thereof
or any option, warrant or other right to acquire any such Equity Interest in the Company or any
Subsidiary thereof.



“Revolving Borrowing” means a Borrowing comprised of US Tranche Revolving Loans,
Foreign Tranche Revolving Loans, or Malaysian Tranche Revolving Loans.



“Revolving Credit Exposure” means a US Tranche Revolving Exposure, a Foreign Tranche
Exposure or a Malaysian Tranche Exposure.



“Revolving Loan” means a US Tranche Revolving Loan, a Foreign Tranche Revolving Loan
or a Malaysian Tranche Revolving Loan.



“Ringgit Malaysia”, “MYR” or “RM” means the lawful money of Malaysia.



“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services
LLC business.



“Senior Note Purchase Agreement” means the Note Purchase Agreement dated March 1, 2006
by and among the Company, A. Schulman Europe GmbH & Co. KG, certain affiliates thereof and the
Persons party thereto as purchasers, as the same may be amended, restated, supplemented or
otherwise modified from time to time.



“Senior Notes” means the Senior Guaranteed Notes issued by A. Schulman Europe GmbH &
Co. KG and the Company pursuant to the Senior Note Purchase Agreement, as each may be amended,
restated, supplemented, replaced or refinanced (so long as no Default or
Event of Default is then outstanding or results from such replacement or refinancing) or
otherwise modified from time to time.


 


30









 





“Significant Subsidiary” means at any time a Subsidiary of the Company which either
(i) has assets in excess of 5% of Total Assets as determined as of the last day of the fiscal year
immediately preceding the fiscal year in which such 5% amount is being determined, or (ii)
accounted for more than 5% of the consolidated revenues of the Company and its Subsidiaries as
determined as of the last day of the fiscal year immediately preceding the fiscal year in which
such 5% amount is being determined.



“Specified 6.01 Indebtedness” means the Indebtedness described in Section 6.01(b).



“Standard Securitization Undertakings” means representations, warranties, covenants
and indemnities entered into by the Company or any Subsidiary thereof in connection with the
Permitted Receivables Facility which are reasonably customary in an accounts receivable financing
transaction.



“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for eurocurrency fundings (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include
those imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time to any Lender under
such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.



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



“Subsidiary” means any subsidiary of the Company; provided, that Persons that
would be required in accordance with GAAP to be consolidated with the Company, but which are not
otherwise controlled by the Company shall be “Subsidiaries” hereunder solely for the
purpose of making calculations under Section 6.09 hereof, but shall not be “Subsidiaries”
hereunder for purposes of any representation, warranty or other covenant hereunder.


 


31









 





“Subsidiary Guarantee Agreement” means a Subsidiary Guarantee Agreement substantially
in the form of Exhibit D, made by the Subsidiary Guarantors in favor of the Administrative Agent
for the benefit of the Lenders.



“Subsidiary Guarantors” means each Initial Subsidiary Guarantor and each other Person
that becomes party to a Subsidiary Guarantee Agreement as a Subsidiary Guarantor, and the permitted
successors and assigns of each such Person (except to the extent such successor or assign is
relieved from its obligations under the Subsidiary Guarantee Agreement pursuant to the provisions
of this Agreement); provided that any Person released from the Subsidiary Guarantee
Agreement pursuant to the provisions of Section 5.09 shall no longer be a “Subsidiary Guarantor”
unless and until such Person re-executes the Subsidiary Guarantee Agreement pursuant to the
provisions of Section 5.09.



“Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Company or the Subsidiaries shall be a
Swap Agreement.



“Swingline Exposure” means, at any time, the sum of (a) the US Tranche Swingline
Exposure, and (b) the Foreign Tranche Swingline Exposure. The Swingline Exposure of any Lender
shall be the sum of (a) the US Tranche Swingline Exposure for such Lender, if any, and (b) the
Foreign Tranche Swingline Exposure for such Lender, if any, at such time.



“Swingline Lender” means the US Tranche Swingline Lender, or the applicable Foreign
Tranche Swingline Lender, as the case may be.



“Swingline Loan” means a US Tranche Swingline Loan or a Foreign Tranche Swingline
Loan, as the case may be.



“TARGET” means Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.



“TARGET Day” means any day on which TARGET is open for settlement of payments in Euro.



“Target EBITDA” means, with respect to any Person acquired pursuant to a Permitted
Acquisition, for any period, the net income (or loss) of such Person and its Subsidiaries
calculated on a consolidated basis for such period in accordance with GAAP plus, to the
extent deducted from revenues in determining the net income (or loss) of such Person and its
Subsidiaries as described above, (i) for any period, the interest expense of such Person and its
Subsidiaries calculated on a consolidated basis for such period, (ii) expenses for income taxes,
(iii) depreciation, (iv) amortization, and (v) extraordinary, non-recurring or non-cash charges,
minus, to the extent included in net income for such Person, extraordinary, non-recurring
or non-cash gains.


 


32









 





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



“Test Period” means each period of four consecutive fiscal quarters of the Company
then last ended (in each case taken as one accounting period).



“Total Asset Test Amount” means, with respect to any fiscal year (the “Applicable
Year”), the aggregate amount of Total Assets as in effect on the last day of the immediately
preceding fiscal year plus with respect to any assets acquired during the Applicable Year
as part of a Permitted Acquisition, the aggregate amount thereof as set forth in audited financials
delivered to the Administrative Agent as part of such Permitted Acquisition.



“Total Assets” means at any time the total assets of the Company and its Subsidiaries
on a consolidated basis which would be shown as assets of the Company and such consolidated
Subsidiaries in the Company’s consolidated balance sheet in accordance with GAAP.



“Total Assets Limitation” means, at any time when the Net Debt Leverage Ratio is
greater than 2.50 to 1.00, that the aggregate amount, on a pro forma basis, of (x) Indebtedness
described in Section 6.01(d)(iv), (y) Contingent Obligations described in Section 6.01(e)(iii), and
(z) investments, purchases, acquisitions, sales, loans, and advances described in Section 6.04(F)
does not exceed 15% of Total Assets as determined as of the last day of the fiscal year immediately
preceding the fiscal year in which the Total Assets Limitation is being determined.



“Total Leverage Ratio” means, at any time for the Test Period then most recently
ended, for the Company and its Subsidiaries on a consolidated basis and calculated in accordance
with GAAP, the ratio of (x) Indebtedness minus the principal portion of the Material Disposition
Adjustment Amount, if any, at such time to (y) Adjusted EBITDA.



“Tranche” means the US Tranche, the Foreign Tranche or the Malaysian Tranche.



“Tranche Percentage” means, with respect to any Lender, such Lender’s US Tranche
Revolving Percentage, Foreign Tranche Percentage or Malaysian Tranche Percentage, as the case may
be.



“Transactions” means the execution, delivery and performance by the Borrowers of this
Agreement and each Borrowing Subsidiary Agreement, the execution, delivery and performance by the
Borrowers and their applicable Affiliates of all other Loan Documents, the borrowing of Loans and
the use of the proceeds thereof, the issuance of Letters of Credit hereunder and the execution,
delivery and performance by the Subsidiary Guarantors of the Subsidiary Guarantee Agreement.



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


 


33









 





“US Dollar Equivalent” means, on any date of determination, (a) with respect to any
amount in US Dollars, such amount, and (b) with respect to any amount in an Alternative Currency,
the equivalent in US Dollars of such amount, determined by the Administrative Agent pursuant to
Section 1.05 using the Exchange Rate with respect to such Alternative Currency at the time in
effect under the provisions of such Section.



“US Dollars” or “$” means the lawful money of the United States of America.



“US Swingline Rate” means either (a) the Alternate Base Rate, or (b) a rate mutually
agreed upon by the Company and JPMorgan Chase Bank, N.A.



“US Tranche” means the US Tranche Revolving Commitments, the US Tranche Revolving
Loans, the US Tranche LC Exposure and the US Tranche Swingline Loans.



“US Tranche LC Exposure” means, at any time, for any Lender with a US Tranche
Revolving Commitment, the sum of (a) the aggregate undrawn amount of all outstanding Letters of
Credit issued under that portion of the US Tranche that corresponds with the US Tranche Revolving
Commitments at such time, (b) the US Dollar Equivalent of the aggregate undrawn amount of all
outstanding Letters of Credit issued under the US Tranche denominated in an Alternative Currency at
such time and (c) the aggregate amount of all LC Disbursements in respect of Letters of Credit
issued under the US Tranche that have not yet been reimbursed by or on behalf of the applicable
Borrower at such time. The US Tranche LC Exposure of any US Tranche Lender at any time shall be
its US Tranche Revolving Percentage of the total US Tranche LC Exposure at such time.



“US Tranche Lender” means a Lender with a US Tranche Revolving Commitment.



“US Tranche Revolving Borrowing” means a Borrowing comprised of US Tranche Revolving
Loans.



“US Tranche Revolving Commitment” means, with respect to each US Tranche Lender, the
commitment of such US Tranche Lender to make US Tranche Revolving Loans and to acquire
participations in Letters of Credit issued under the US Tranche and US Tranche Swingline Loans
hereunder, expressed as an amount representing the maximum aggregate amount of such US Tranche
Lender’s US Tranche Revolving Exposure hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.09 and (c)
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 11.04. The initial amount of each US Tranche Lender’s US Tranche Revolving Commitment is
set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such US Tranche
Lender shall have assumed its US Tranche Revolving Commitment, as applicable. The aggregate amount
of the US Tranche Revolving Commitments on the date hereof is the US Dollar Equivalent of
$250,000,000.



“US Tranche Revolving Exposure” means, with respect to any US Tranche Lender with a US
Tranche Revolving Commitment at any time, the sum at such time, without duplication, of (a) such
Lender’s US Tranche Revolving Percentage of the sum of the principal
amounts of the outstanding US Tranche Revolving Loans, plus (b) the aggregate amount of such
Lender’s US Tranche LC Exposure and US Tranche Swingline Exposure at such time.


 


34









 





“US Tranche Revolving Loan” means a Loan made by a US Tranche Lender with a US Tranche
Revolving Loan Commitment pursuant to Section 2.01(a).



“US Tranche Revolving Percentage” means, with respect to any US Tranche Lender, the
percentage of the total US Tranche Revolving Commitments represented by such Lender’s US Tranche
Revolving Commitment. If the US Tranche Revolving Commitments have terminated or expired, the US
Tranche Revolving Percentages shall be determined based upon the US Tranche Revolving Commitments
most recently in effect, giving effect to any assignments, and, pursuant to the following, any
Lender’s status as a Defaulting Lender at the time of determination. Notwithstanding the
foregoing, in the case of Section 2.22 when a Defaulting Lender shall exist, “US Tranche Revolving
Percentage” shall mean the percentage of the aggregate of the US Tranche Revolving Commitments
(disregarding any Defaulting Lender’s US Tranche Revolving Commitment) represented by such Lender’s
US Tranche Revolving Commitment.



“US Tranche Swingline Exposure” means, at any time, the aggregate principal amount of
all US Tranche Swingline Loans outstanding at such time. The US Tranche Swingline Exposure of any
US Tranche Lender at any time shall be its US Tranche Revolving Percentage of the total US Tranche
Swingline Exposure at such time.



“US Tranche Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as
lender of US Tranche Swingline Loans hereunder.



“US Tranche Swingline Loan” means a Loan made by the US Tranche Swingline Lender to
the Company pursuant to Section 2.04.



“Wholly-Owned Subsidiary” means, as to any Person, (a) any corporation 100% of whose
Equity Interests (other than directors’ qualifying shares) is owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person, (b) any partnership, association, joint venture or
other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a
100% Equity Interest (other than directors’ qualifying shares) and (c) any corporation,
partnership, association, business trust or limited liability entity (i) that is formed under the
laws of a jurisdiction other than the United States of America, any State thereof, or the District
of Columbia and (ii) with respect to which such Person and/or one or more Wholly-Owned Subsidiaries
of such Person owns all of the economic benefit of a 100% equity interest, whether through an agent
or otherwise; provided, that, if such Person is prohibited by law from owning 100% of such
economic benefit, such Person owns all of such economic benefit that it may lawfully own and in any
event not less than 98% of the total economic benefit of ownership of such entity.



“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.


 


35









 





SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a “US Tranche Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”) or
by Class and Type (e.g., a “Eurocurrency US Tranche Revolving Loan”). Borrowings also may
be classified and referred to by Class (e.g., a “US Tranche Revolving Borrowing”) or by
Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency
US Tranche Revolving Borrowing”).



SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be
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”. The word “law” shall be construed as
referring to all statutes, rules, regulations, codes and other laws (including official rulings and
interpretations thereunder having the force of law or with which affected Persons customarily
comply), and all judgments, orders and decrees, of all Governmental Authorities. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, restatements, supplements or modifications set forth herein), (b)
any definition of or reference to any statute, rule, or regulation shall be construed as referring
thereto as from time to time amended, supplemented or otherwise modified (including by succession
of comparable successor laws), (c) reference herein to any Person shall be construed to include
such Person’s successors and assigns (subject to any restrictions on assignment set forth herein)
and, in the case of any Governmental Authority, any other Governmental Authority that shall have
succeeded to any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and
words of similar import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (f) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.



SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Company that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith; provided,
further, that if GAAP is amended or revised subsequent to the date hereof to cause
operating leases to be treated as capitalized leases, then such change shall not be given effect
hereunder, and those types of leases which were treated as operating leases as of the date hereof
shall continue to be
treated as operating leases and not capitalized leases. Notwithstanding any other provision
contained herein, all terms of an accounting or financial nature used herein shall be construed,
and all computations of amounts and ratios referred to herein shall be made, without giving effect
to any election under Accounting Standards Codification 825-10-25 (previously referred to as
Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification or
Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other
liabilities of the Company or any Subsidiary at “fair value”, as defined therein.


 


36









 





SECTION 1.05. Foreign Currency Calculations. (a) For purposes of determining the Foreign Tranche Exposure, the Malaysian Tranche
Exposure, the US Tranche Revolving Exposure, or any other amount as a result of foreign currency
exchange rate fluctuation, the Administrative Agent or a Global Agent shall determine the Exchange
Rate as of the applicable Exchange Rate Date with respect to Euro and each Alternative Currency in
which any requested or outstanding Letter of Credit is denominated and shall apply such Exchange
Rates to determine such amount (in each case after giving effect to any Borrowings to be made or
repaid and any Letters of Credit to be issued, amended, renewed, extended or terminated, to the
extent practicable on or prior to the applicable date for such calculation). The amount of any LC
Disbursement made by an Issuing Bank in an Alternative Currency and not reimbursed by the Company
shall be determined as set forth in paragraph (e) or (l) of Section 2.05, as applicable.



(b) For purposes of any determination under Section 6.01 or 6.02 or under paragraph (f), (g)
or (k) of Article VII, all amounts incurred, outstanding or proposed to be incurred or outstanding
in currencies other than US Dollars shall be translated into US Dollars at the currency exchange
rates in effect on the date of such determination; provided that no Default or Event of
Default shall arise as a result of any limitation set forth in US Dollars in Section 6.01 or 6.02
being exceeded solely as a result of changes in currency exchange rates from those rates applicable
at the time or times Indebtedness or Liens were initially consummated in reliance on the exceptions
under such Sections.



ARTICLE II




The Credits




SECTION 2.01. Commitments. (a) Subject to the terms and conditions set forth herein, each US Tranche Lender agrees to
make US Tranche Revolving Loans to the Company from time to time during the Availability Period in
US Dollars, in each case in an aggregate principal amount at any time outstanding that will not
result in (i) such Lender’s US Tranche Revolving Exposure exceeding its US Tranche Revolving
Commitment, or (ii) the aggregate amount of the Lenders’ US Tranche Revolving Exposures exceeding
the aggregate amount of the US Tranche Revolving Commitments.


 


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(b) Subject to the terms and conditions set forth herein, each Foreign Tranche Lender agrees
to make Foreign Tranche Revolving Loans to (i) the Foreign Borrowers in Euro or another Alternative
Currency and (ii) the Company in US Dollars from time to time during the Availability Period in an
aggregate principal amount of Loans at any time outstanding that will
not result in (i) such Lender’s Foreign Tranche Exposure exceeding its Foreign Tranche
Commitment or (ii) the aggregate amount of the Lenders’ Foreign Tranche Exposures exceeding the
aggregate amount of the Foreign Tranche Commitments. As at the date of this Agreement, each
Foreign Tranche Lender represents and warrants for the benefit of the Borrowers, the Agents and the
Lenders that it is a Qualified Foreign Tranche Lender.



(c) Subject to the terms and conditions set forth herein, each Malaysian Tranche Lender agrees
to make Malaysian Tranche Revolving Loans to the Malaysian Borrower in an Alternative Currency from
time to time during the Availability Period in an aggregate principal amount of Loans at any time
outstanding that will not result in (i) such Lender’s Malaysian Tranche Exposure exceeding its
Malaysian Tranche Commitment or (ii) the aggregate amount of the Lenders’ Malaysian Tranche
Exposures exceeding the aggregate amount of the Malaysian Tranche Commitments.



(d) Within the foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Revolving Loans.



SECTION 2.02. Loans and Borrowings. (a) Each US Tranche Revolving Loan shall be made as part of a Borrowing consisting of US
Tranche Revolving Loans made by the US Tranche Lenders ratably in accordance with their respective
US Tranche Revolving Commitments. Each Foreign Tranche Revolving Loan shall be made as part of a
Borrowing consisting of Foreign Tranche Revolving Loans made by the Foreign Tranche Lenders ratably
in accordance with their respective Foreign Tranche Commitments. Each Malaysian Tranche Revolving
Loan shall be made as part of a Borrowing consisting of Malaysian Tranche Revolving Loans made by
the Malaysian Tranche Lenders ratably in accordance with their respective Malaysian Tranche
Commitments. The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several, and no Lender shall be responsible for any other Lender’s failure to make
Loans as required hereunder.



(b) Subject to Section 2.14,




(i) each US Tranche Revolving Borrowing shall be comprised entirely of Eurocurrency
Loans or ABR Loans, in each case as the Company may request in accordance herewith;




(ii) each Foreign Tranche Revolving Borrowing and Malaysian Tranche Revolving Borrowing
shall be comprised entirely of Eurocurrency Loans;




(iii) each US Tranche Swingline Loan shall bear interest by reference to the US
Swingline Rate; and




(iv) each Foreign Tranche Swingline Loan shall bear interest by reference to the
Foreign Tranche Swingline Rate.



Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14,
2.15, 2.16, 2.17 and 2.18 shall apply to such Affiliate to the same extent as to such
Lender); provided that any exercise of such option shall not affect the obligation of the
applicable Borrower to repay such Loan in accordance with the terms of this Agreement.


 


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(c) Each Borrowing shall be in an aggregate amount that is at least equal to the Borrowing
Minimum and an integral multiple of the Borrowing Multiple; provided that an ABR Borrowing
to the Company in US Dollars under the US Tranche may be made in an aggregate amount that is equal
to the aggregate available US Tranche Revolving Commitments, as the case may be, or that is
required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.04(e).
Borrowings of more than one Type and Class may be outstanding at the same time; provided
that there shall not at any time be more than a total of fifteen US Tranche Eurocurrency Revolving
Borrowings outstanding, more than a total of ten Foreign Tranche Eurocurrency Revolving Borrowings
outstanding, and more than five Malaysian Tranche Eurocurrency Revolving Borrowings outstanding.



(d) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.



SECTION 2.03. Requests for Revolving Borrowings.



(a) To request a Revolving Borrowing, the applicable Borrower, or the Company on behalf of the
applicable Borrower, shall notify the Applicable Agent (and the Administrative Agent, if the
Applicable Agent is not the Administrative Agent) of such request by telephone (or, with respect to
the Administrative Agent, by e-mail in accordance with Section 11.01):




(i) in the case of a Eurocurrency Borrowing, not later than (A) other than for
Borrowings under the Malaysian Tranche or Borrowings denominated in Australian Dollars, 2:00
p.m., Local Time, three Business Days before the date of the proposed Borrowing, (B) for
Borrowings under the Malaysian Tranche, 10:00 a.m., Local Time, three Business Days before
the date of the proposed Borrowing, and (C) for Borrowings denominated in Australian
Dollars, 2:00 p.m., Local Time, four Business Days before the date of the proposed
Borrowing; and




(ii) in the case of an ABR Borrowing in respect of a US Tranche Revolving Loan made in
US Dollars to the Company, not later than 2:00 p.m., New York City time, one Business Day
before the date of the proposed Borrowing.



Each telephonic or electronic Borrowing Request shall be irrevocable and shall be confirmed by 3:00
p.m. (Local Time) on the same Business Day by e-mail (if to the Administrative Agent), hand
delivery or telecopy to the Applicable Agent of a written Borrowing Request in a form approved by
the Applicable Agent and signed by the applicable Borrower, or by the Company on behalf of the
applicable Borrower. Notwithstanding the foregoing or anything to the contrary set forth herein,
all notices in respect of the Malaysian Tranche must be sent in writing, and such written notices
shall not include e-mails. Each telephonic, electronic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:



1. The Borrower requesting such Borrowing (or on whose behalf the Company is requesting such
Borrowing);



2. Whether the requested Borrowing is to be a US Tranche Revolving Borrowing, a Foreign
Tranche Revolving Borrowing, or a Malaysian Tranche Revolving Borrowing;


 


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3. The currency and aggregate principal amount of the requested Borrowing;



4. The date of the requested Borrowing, which shall be a Business Day;



5. The Type of the requested Borrowing;



6. In the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and



7. The location and number of the relevant Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.



(b) If no election as to the Type of Borrowing is specified, then the requested Borrowing
shall be (i) in the case of a Borrowing under the US Tranche in US Dollars by the Company, an ABR
Borrowing, and (ii) in the case of a Borrowing under the Foreign Tranche or the Malaysian Tranche,
a Eurocurrency Borrowing. If no Interest Period is specified with respect to any requested
Eurocurrency Borrowing, then the relevant Borrower shall be deemed to have selected an Interest
Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance
with this Section, the Applicable Agent shall advise each Lender that will make a Loan as part of
the requested Borrowing of the details thereof and of the amount of the Loan to be made by such
Lender as part of the requested Borrowing. With respect to the Malaysian Tranche, the Applicable
Agent shall advise the Lenders under such Tranche of such Borrowing Request by 12:00 noon Local
Time two Business Days prior to the date of the requested Borrowing.



SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set forth herein, the US Tranche Swingline Lender
agrees to make US Tranche Swingline Loans in US Dollars to the Company from time to time during the
Availability Period, in an aggregate principal amount at any time outstanding that will not result
in (i) the aggregate principal amount of outstanding US Tranche Swingline Loans exceeding
$30,000,000 or (ii) the total US Tranche Revolving Exposures exceeding the total US Tranche
Revolving Commitments; provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Subject to the terms and conditions set forth
herein, the applicable Foreign Tranche Swingline Lender agrees to make Foreign Tranche Swingline
Loans in Euro or another Alternative Currency to its corresponding Foreign Borrower and in US
Dollars to the Company from time to time during the Availability Period, in an aggregate principal
amount at any time outstanding that will not result in (i) the US Dollar Equivalent of the
aggregate principal amount of outstanding Foreign Tranche Swingline Loans exceeding the US Dollar
Equivalent of $10,000,000 or (ii) the total Foreign Tranche Exposures exceeding the total Foreign
Tranche Commitments; provided that no Foreign Tranche Swingline Lender shall be required to
make a
Foreign Tranche Swingline Loan to refinance an outstanding Foreign Tranche Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers
may borrow, prepay and reborrow Swingline Loans.


 


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(b) To request a Swingline Loan, the applicable Borrower shall notify the Applicable Agent of
such request by telephone (or, with respect to the Administrative Agent, by e-mail in accordance
with Section 11.01, and in any event as confirmed by telecopy), not later than (w) 2:00 p.m., New
York city time on the day of a proposed Swingline Loan for a Swingline Loan administered by the
Administrative Agent, (x) 10:00 a.m. Local Time four (4) Business Days before the date of the
proposed Swingline Loan with respect to a Swingline Loan requested by the Australian Borrower and
administered by a Global Agent, (y) 10:00 a.m. Local Time on the day of a proposed Swingline Loan
with respect to a Swingline Loan requested by the Belgian Borrower and administered by a Global
Agent, and (z) with respect to any other proposed Swingline Loan, at a time and on a date as agreed
to by the applicable Borrower, the applicable Swingline Lender and the Applicable Agent. Each such
notice shall be irrevocable, shall be deemed to certify that all conditions for a Borrowing set
forth in this Agreement have been satisfied, and shall specify the requested date (which shall be a
Business Day) and amount of the requested Swingline Loan and the Tranche under which the requested
Swingline Loan will be borrowed. The Applicable Agent will promptly advise the applicable
Swingline Lender of any such notice received from such Borrower. The applicable Swingline Lender
shall, subject to the terms and condition of this Agreement, make each Swingline Loan available to
the applicable Borrower (which may vary based upon the Tranche under which such Swingline Loan is
made) by depositing the same, in immediately available funds, to an account of such Borrower
designated by such Borrower or the Company on behalf of such Borrower with the Administrative Agent
or the applicable Global Agent, as applicable, or, solely with respect to those Swingline Loans
administered by the Administrative Agent, by wire transfer to an account specified by such Borrower
in the applicable borrowing request (or, in the case of a US Tranche Swingline Loan made to finance
the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the
applicable Issuing Bank) by 3:00 p.m., Local Time, on the requested date of such Swingline Loan.



(c) A Swingline Lender may by written notice given to the Applicable Agent not later than 1:00
p.m., Local Time, on any Business Day require the Lenders under a Tranche to acquire participations
on such Business Day in all or a portion of the Swingline Loans outstanding under such Tranche.
Such notice shall specify the aggregate amount of Swingline Loans in which such Lenders will
participate. Promptly upon receipt of such notice, the Applicable Agent will give notice thereof
to each applicable Lender, specifying in such notice such Lender’s Tranche Percentage of such
Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Applicable Agent, for the account of the applicable
Swingline Lender, such Lender’s Tranche Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant
to this paragraph is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction or termination of
the Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as


 


41









 






provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Applicable Agent shall promptly pay to the applicable
Swingline Lender the amounts so received by it from the Lenders. The Applicable Agent shall notify
the applicable Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the
Applicable Agent and not to such Swingline Lender. Any amounts received by a Swingline Lender from
the applicable Borrower (or other party on behalf of the applicable Borrower) in respect of a
Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Applicable Agent; any such amounts received by such Agent
shall be promptly remitted by such Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to such Swingline Lender, as their interests may appear;
provided that any such payment so remitted shall be repaid to such Swingline Lender or to
such Applicable Agent, as applicable, if and to the extent such payment is required to be refunded
to the applicable Borrower for any reason. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the applicable Borrower of any default in the payment
thereof.



SECTION 2.05. Letters of Credit.



(a) General; Existing Letters of Credit. Subject to the terms and conditions set
forth herein, the Company under the US Tranche or the Foreign Tranche, or a Foreign Borrower under
the Foreign Tranche, may request the issuance, for its own account and for the benefit of the
Company, the applicable Foreign Borrower, or any Subsidiary of the Company, as applicable, of
Letters of Credit denominated in US Dollars or in any Alternative Currency, in a form reasonably
acceptable to the Administrative Agent, the applicable Global Agent and the Issuing Bank, at any
time and from time to time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Company to, or entered into by the
Company or the applicable Foreign Borrower, as the case may be, with the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control. Schedule 2.05 sets
forth a list of existing letters of credit (the “Existing Letters of Credit”) issued by
certain of the Lenders for the account of the Company or a Subsidiary thereof. On and after the
Effective Date, the Existing Letters of Credit shall constitute Letters of Credit deemed to have
been issued under this Agreement and the Lenders that have issued the Existing Letters of Credit
shall constitute Issuing Banks hereunder.



(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Company or the applicable Foreign Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank, the Administrative Agent and, if applicable, the relevant Global
Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the Tranche under which such Letter of Credit is to be
issued or maintained, the date of issuance, amendment, renewal or extension (which shall be a
Business Day), the date on which such Letter of


 


42









 






Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the currency in which such Letter of Credit is to be denominated (which shall be US
Dollars or an Alternative Currency), the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Company or the applicable Foreign Borrower, as the case may be,
also shall submit a letter of credit application on the Issuing Bank’s standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit, the
Company or the applicable Foreign Borrower, as the case may be, shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the US
Tranche Revolving Exposure shall not exceed the total US Tranche Revolving Commitments, (ii) the
Foreign Tranche Exposure shall not exceed the total Foreign Tranche Commitments, and (iii) the
aggregate face amount of all outstanding Letters of Credit shall not exceed the US Dollar
Equivalent of $75,000,000.



(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Maturity Date.



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


 


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(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Company or the applicable Foreign Borrower, as the case may be, shall
reimburse such LC Disbursement by paying to the Administrative Agent or the applicable Global
Agent, as applicable, an amount equal to such LC Disbursement not later than 2:00 p.m., Local Time,
on the next Business Day following the date that such LC Disbursement
is made; provided that the Company or the applicable Foreign Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.04 that
such payment be financed with (x) an ABR US Tranche Revolving Borrowing or US Tranche Swingline
Loan if for the Company under the US Tranche, or (y) a Foreign Tranche Swingline Loan for the
applicable Foreign Borrower if under the Foreign Tranche, in any case in an equivalent amount and,
to the extent so financed, the Company’s or the applicable Foreign Borrower’s obligation to make
such payment shall be discharged and replaced by the resulting ABR US Tranche Revolving Borrowing,
US Tranche Swingline Loan, or Foreign Tranche Swingline Loan, as the case may be. If the Company
or the applicable Foreign Borrower, as the case may be, fails to make such payment when due, then
(i) if such payment relates to an Alternative Currency Letter of Credit, automatically and with no
further action required, the Company’s or the applicable Foreign Borrower’s (as the case may be)
obligation to reimburse the applicable LC Disbursement shall be permanently converted into an
obligation to reimburse the US Dollar Equivalent, calculated using the Exchange Rates on the date
when such payment was due, of such LC Disbursement and (ii) in the case of each LC Disbursement,
the Administrative Agent or the applicable Global Agent, as the case may be, shall notify each
Lender under the applicable Tranche of the applicable LC Disbursement, the payment then due from
the Company or the applicable Foreign Borrower, as the case may be, in respect thereof and such
Lender’s Tranche Percentage thereof. Promptly following receipt of such notice, each such Lender
shall pay to the Administrative Agent or the relevant Global Agent, as applicable, its Tranche
Percentage of the payment then due from the Company or the applicable Foreign Borrower, as the case
may be, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and
the Administrative Agent or the relevant Global Agent, as applicable, shall promptly pay to the
applicable Issuing Bank in US Dollars or US Dollar Equivalent, as applicable, the amounts so
received by it from such Lenders. Promptly following receipt by the Administrative Agent or the
relevant Global Agent, as applicable, of any payment from the Company or the applicable Foreign
Borrower pursuant to this paragraph, the Administrative Agent or the relevant Global Agent, as
applicable, shall distribute such payment to the Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and
the Issuing Bank as their interests may appear. Any payment made by a Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR US
Tranche Revolving Loans, US Tranche Swingline Loans or Foreign Tranche Swingline Loans, as
contemplated above) shall not constitute a Loan and shall not relieve the Company or the applicable
Foreign Borrower of its obligation to reimburse such LC Disbursement. If the Company’s or the
applicable Foreign Borrower’s reimbursement of, or obligation to reimburse, any amounts in any
Alternative Currency would subject the Administrative Agent, the relevant Global Agent, the
applicable Issuing Bank or any Lender to any stamp duty, ad valorem charge or similar tax that
would not be payable if such reimbursement were made or required to be made in US Dollars, the
Company or the applicable Foreign Borrower shall, at its option and in compliance with all
applicable exchange control restrictions, either (x) pay the amount of any such tax requested by
the Administrative Agent, the relevant Global Agent, the relevant Issuing Bank or Lender or (y)
reimburse each LC Disbursement made in such Alternative Currency in US Dollars, in an amount equal
to the US Dollar Equivalent, calculated using the applicable Exchange Rate on the date such LC
Disbursement is made, of such LC Disbursement.


 


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(f) Obligations Absolute. Each of the Company’s and the applicable Foreign Borrower’s
obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the
terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack
of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft
or other document that does not comply with the terms of such Letter of Credit, or (iv) any other
event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but
for the provisions of this Section, constitute a legal or equitable discharge of, or provide a
right of setoff against, the Company’s or the applicable Foreign Borrower’s obligations hereunder.
Neither the Agents, the Lenders nor the Issuing Banks, nor any of their Related Parties, shall have
any liability or responsibility by reason of or in connection with the issuance or transfer of any
Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from causes beyond the
control of the Issuing Bank; provided that the foregoing shall not be construed to excuse
the Issuing Bank from liability to the Company or the applicable Foreign Borrower to the extent of
any direct damages (as opposed to consequential damages, claims in respect of which are hereby
waived by the Company and the applicable Foreign Borrower to the extent permitted by applicable
law) suffered by the Company or the applicable Foreign Borrower that are caused by the Issuing
Bank’s failure to exercise care when determining whether drafts and other documents presented under
a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the
absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents presented which appear on
their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.



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


 


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(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Company or the applicable Foreign Borrower, as the case may be, shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made to but excluding
the date that the Company or the applicable Foreign Borrower, as the case may be, reimburses such
LC Disbursement, (i) if such LC Disbursement is made in US Dollars, and at all times following the
conversion to US Dollars of an LC Disbursement made in an Alternative Currency pursuant to
paragraph (e) above, at the rate per annum then applicable to ABR US Tranche Revolving Loans, and
(ii) if such LC Disbursement is made in an Alternative Currency, at all times prior to its
conversion to US Dollars pursuant to paragraph (e) above, at a rate equal to the rate reasonably
determined by the applicable Issuing Bank to be the cost to such Issuing Bank of funding such LC
Disbursement plus the Applicable Margin applicable to Eurocurrency Revolving Loans at such time;
provided that, if the Company or the applicable Foreign Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except
that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of
this Section to reimburse the Issuing Bank shall be for the account of such Lender to the extent of
such payment.



(i) Replacement of an Issuing Bank. Any Issuing Bank may be replaced at any time by
written agreement among the Company, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Company shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank
shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit to be issued by it thereafter and (ii) references herein to the “Issuing Bank”
shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be required to issue additional
Letters of Credit.



(j) Cash Collateralization. If any Event of Default shall occur and be continuing
under clauses (h), (i) or (j) under Article VII, or if any other Event of Default shall occur and
be continuing and the Required Lenders make a demand under this Section, and the Company and the
applicable Foreign Borrower receive notice (and such Foreign Borrower shall be deemed to receive
any notice received by the Company) from the Administrative Agent or the Required Lenders demanding
the deposit of cash collateral pursuant to this paragraph, the Company shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in US Dollars in cash equal to the LC Exposure as of such date plus any accrued
and unpaid interest thereon; provided that (i) the portions of such amount attributable to
undrawn Alternative Currency Letters of Credit or LC Disbursements in an Alternative Currency that
the Company is not late in reimbursing shall be deposited in the applicable Alternative Currencies
in the actual amounts of such undrawn Letters of Credit and LC Disbursements and (ii) the


 


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obligation
to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable,
without demand or other notice of any kind, upon the occurrence of any Event of Default with
respect to the Company described in clause (h), (i) or (j) under Article VII. For the purposes of
this paragraph, the Alternative Currency LC Exposure shall be calculated using the Exchange Rates
on the date notice demanding cash collateralization is delivered to the Company. The Company also
shall deposit cash collateral pursuant to this paragraph as and to the extent required by Section
2.11(b). Such deposit shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Company under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and at the Company’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse any Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Company for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of the Required Lenders), be applied to
satisfy other obligations of the Company under this Agreement. If the Company is required to
provide an amount of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned to the Company
within three Business Days after all Events of Default have been cured or waived. To the extent
the Company does not fulfill its obligations under this Section with respect to a Letter of Credit
issued for the account of a Foreign Borrower, such Foreign Borrower shall satisfy such obligations
in respect of such Letter of Credit.



(k) Issuing Bank Agreements. Unless otherwise requested by the Administrative Agent,
each Issuing Bank shall report in writing to the Administrative Agent and the Global Agents (i) on
the first Business Day of each week, the daily activity (set forth by day) in respect of Letters of
Credit during the immediately preceding week, including all issuances, extensions, amendments and
renewals, all expirations and cancellations and all disbursements and reimbursements, (ii) on or
prior to each Business Day on which such Issuing Bank expects to issue, amend, renew or extend any
Letter of Credit, the date of such issuance, amendment, renewal or extension, and the aggregate
face amount of the Letters of Credit to be issued, amended, renewed or extended by it and
outstanding after giving effect to such issuance, amendment, renewal or extension occurred (and
whether the amount thereof changed), it being understood that such Issuing Bank shall not permit
any issuance, renewal, extension or amendment resulting in an increase in the amount of any Letter
of Credit to occur without first obtaining written confirmation from the Administrative Agent that
it is then permitted under this Agreement, (iii) on each Business Day on which such Issuing Bank
makes any LC Disbursement, the date of such LC Disbursement and the amount of such LC Disbursement,
(iv) on any Business Day on which the Company or the applicable Foreign Borrower, as the case may
be, fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such
day, the date of such failure and the amount and currency of such LC Disbursement and (v) on any
other Business Day, such other information as the Administrative Agent shall reasonably request.


 


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(l) Conversion. In the event that the Loans become immediately due and payable on any
date pursuant to Article VII, all amounts (i) that the Company or the applicable Foreign Borrower
is at the time or thereafter becomes required to reimburse or otherwise pay to the Administrative
Agent or the relevant Global Agent, as applicable, in respect of LC Disbursements made under any
Alternative Currency Letter of Credit (other than amounts in respect of which such Borrower has
deposited cash collateral pursuant to paragraph (j) above, if such cash collateral was deposited in
the applicable Alternative Currency to the extent so deposited or applied), (ii) that the Lenders
are at the time or thereafter become required to pay to the Applicable Agent and the Applicable
Agent is at the time or thereafter becomes required to distribute to the applicable Issuing Bank
pursuant to paragraph (e) of this Section in respect of unreimbursed LC Disbursements made under
any Alternative Currency Letter of Credit and (iii) of each Lender’s participation in any
Alternative Currency Letter of Credit under which an LC Disbursement has been made shall,
automatically and with no further action required, be converted into the US Dollar Equivalent,
calculated using the Exchange Rates on such date (or in the case of any LC Disbursement made after
such date, on the date such LC Disbursement is made), of such amounts. On and after such
conversion, all amounts accruing and owed to the Administrative Agent, the Global Agents, the
applicable Issuing Bank or any Lender in respect of the obligations described in this paragraph
shall accrue and be payable in US Dollars.



SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds in the applicable currency by 11:00 a.m.,
Local Time, to the account of the Applicable Agent most recently designated for such purpose for
Loans of such Class and currency by notice to the applicable Lenders; provided that
Swingline Loans shall be made as provided in Section 2.04. The Applicable Agent will make such
Loans available to the relevant Borrower by promptly crediting the amounts so received, in like
funds, to an account of such Borrower maintained by the Applicable Agent (i) in New York City, in
the case of US Tranche Loans or Foreign Tranche Loans made to the Company, (ii) in Sydney,
Australia, in the case of Foreign Tranche Loans made to the Australian Borrower, (iii) in Brussels,
Belgium, in the case of Foreign Tranche Loans made to the Belgian Borrower, (iv) in Kuala Lumpur,
Malaysia, in the case of the Malaysian Borrower, and (v) in such location(s) as may be agreed upon
by the Administrative Agent and the Company with respect to any Foreign Borrower not identified in
clause (i) through (iv) hereof, or (vi) or in any case, by wire transfer to an account specified by
such Borrower in the applicable Borrowing Request that is not in contravention of this Agreement;
provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable
Issuing Bank.



(b) Unless the Applicable Agent shall have received notice from a Lender prior to the proposed
date of any Borrowing that such Lender will not make available to the Applicable Agent such
Lender’s share of such Borrowing, the Applicable Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the relevant Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Applicable Agent, then the applicable Lender and such Borrower severally agree to pay to the
Applicable Agent forthwith on demand such corresponding amount 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
Applicable Agent, at (i) in the case of such Lender, the rate reasonably determined by the
Applicable Agent to be the cost to it of funding such amount or (ii) in the case of such Borrower,
the interest rate applicable to the subject Loan. If such Lender pays such amount to the
Applicable Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.


 


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SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the relevant Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a
Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this Section. A
Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which may not be
converted or continued.



(b) To make an election pursuant to this Section, a Borrower, or the Company on its behalf,
shall notify the Applicable Agent of such election by telephone (or, if to the Administrative
Agent, by e-mail in accordance with Section 11.01) by the time that a Borrowing Request would be
required under Section 2.03 if such Borrower were requesting a Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such telephonic (or
electronic) Interest Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the relevant Borrower, or the Company on its
behalf. Notwithstanding any contrary provision herein, (1) all notices in respect of the
Malaysian Tranche shall be delivered in writing (other than e-mail), and no telephonic notices may
be delivered in respect of such Tranche, and (2) this Section shall not be construed to permit any
Borrower to (i) change the currency of any Borrowing, (ii) elect an Interest Period for
Eurocurrency Loans that does not comply with Section 2.02(d) or (iii) convert any Borrowing to a
Borrowing of a Type not available under the Class of Commitments pursuant to which such Borrowing
was made.



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




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




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




(iii) the Type of the resulting Borrowing; and




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


 


49









 





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



(d) Promptly following receipt of an Interest Election Request, the Applicable Agent shall
advise each Lender holding a Loan to which such request relates of the details thereof and of such
Lender’s portion of each resulting Borrowing.



(e) If the relevant Borrower fails to deliver a timely Interest Election Request with respect
to a Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period, such
Borrowing shall (i) in the case of a Eurocurrency Borrowing denominated in US Dollars and made to
the Company under the US Tranche, be converted to an ABR Borrowing, and (ii) in the case of any
other Eurocurrency Borrowing, be continued as a Eurocurrency Borrowing with an Interest Period of
one month’s duration. Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so
notifies the Company, then, so long as an Event of Default is continuing (i) no outstanding
Borrowing borrowed by the Company may be converted to or continued at the end of the then current
Interest Period as a Eurocurrency Borrowing and (ii) unless repaid, each Eurocurrency Borrowing
shall (A) in the case of such a Borrowing by the Company in US Dollars under the US Tranche, be
converted into an ABR Borrowing at the end of the Interest Period applicable thereto, and (B) in
the case of any other Eurocurrency Borrowing, be continued as a Eurocurrency Borrowing with an
Interest Period of one month’s duration.



SECTION 2.08. Termination and Reduction of Commitments. (a) Unless previously terminated, the US Tranche Revolving Commitments, the Foreign
Tranche Commitments and the Malaysian Tranche Commitments shall terminate on the Maturity Date.



(b) The Company may at any time terminate, or from time to time reduce, the Revolving
Commitments of the US Tranche, the Foreign Tranche or the Malaysian Tranche; provided that
(i) each reduction of the Commitments of the applicable Tranche shall be in an amount that is an
integral multiple of the Borrowing Multiple for a Eurocurrency Borrowing denominated in US Dollars
and not less than the Borrowing Minimum for a Eurocurrency Borrowing denominated in US Dollars,
(ii) the Company shall not terminate or reduce the US Tranche Revolving Commitments if, after
giving effect to any concurrent prepayment of the US Tranche Revolving Loans in accordance with
Section 2.11, the aggregate US Tranche Revolving Exposures would exceed the aggregate US Tranche
Revolving Commitments, (iii) the Company shall not terminate or reduce the Foreign Tranche
Commitments if, after giving effect to any concurrent prepayment of the Foreign Tranche Revolving
Loans in accordance with Section 2.11, the aggregate Foreign Tranche Exposures would exceed the
aggregate Foreign Tranche Commitments, and (iv) the Company shall not terminate or reduce the
Malaysian Tranche Commitments if, after giving effect to any concurrent prepayment of the Malaysian
Tranche
Revolving Loans in accordance with Section 2.11, the aggregate Malaysian Tranche Exposures
would exceed the aggregate Malaysian Tranche Commitments.


 


50









 





(c) The Company shall notify the Administrative Agent of any election to terminate or reduce
the Commitments of any Class under paragraph (b) of this Section at least three Business Days prior
to the effective date of such termination or reduction, specifying the effective date of such
election. Each notice delivered by the Company pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Commitments delivered by the Company may state
that such notice is conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or reduction of the
Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall
be made ratably among the applicable Lenders in accordance with their respective Commitments of
such Class.



SECTION 2.09. Increase in Commitments.



(a) At any time and from time to time prior to the Maturity Date, the Company may, by written
notice to the Administrative Agent (which the Administrative Agent shall promptly furnish to each
Lender in the applicable Tranche), request that one or more Persons (which may include the Lenders
in the applicable Tranche, as provided below) offer to increase their Commitments under any Tranche
(if they are Lenders) or to make additional Commitments under any Tranche (if they are not already
Lenders) (such increased and/or additional Commitments being, in the case of any Tranche, a
“Tranche Increase”) under this paragraph (a), it being understood that if such offer is to be made
by a Person that is not already a Lender, the Administrative Agent shall have consented to such
Person being a Lender hereunder to the extent such consent would be required pursuant to Section
11.04(b) in the event of an assignment to such Person (such consent not to be unreasonably
withheld). The minimum aggregate amount of any Tranche Increase shall be $10,000,000 in the case
of the US Tranche and $5,000,000 in the case of each of the Foreign Tranche and Malaysian Tranche.
In no event shall the aggregate amount of all Tranche Increases pursuant to this paragraph (a)
exceed $150,000,000. The Company may arrange for one or more banks or other financial
institutions, which may include any Lender, to extend applicable Tranche Commitments or increase
their existing applicable Tranche Commitments in an aggregate amount equal to the amount of the
Tranche Increase. In the event that one or more of such Persons offer to increase or enter into
such Commitments, and such Persons, the Company, any other applicable Borrower and the
Administrative Agent agree as to the amount of such Commitments to be allocated to the respective
Persons making such offers and the fees (if any) to be payable by the Company in connection
therewith, the Company, any other applicable Borrower, such Persons, the Administrative Agent and
any other Applicable Agent shall execute and deliver an appropriate amendment to this Agreement,
which amendment shall specify, among other things, the procedures for reallocating any outstanding
Revolving Credit Exposure under the Tranche that is subject to the Tranche Increase effected by
such amendment. Notwithstanding anything to the contrary set forth herein, the Agents shall have
at least 15 Business Days, but no more than 20 Business Days, prior to the proposed effective date
for such an increase to obtain administrative details from Lenders increasing their Commitments or
Persons becoming new Lenders hereunder and to otherwise administer such increase, including
processing Borrowing Requests and
determining whether breakage amounts, if any, will be required to be paid by the Borrowers.
No such increase shall be effective until such administration period has expired.


 


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(b) Notwithstanding the foregoing, no increase in the Commitments (or in the Commitment of any
Lender) or addition of a new Lender shall become effective under this Section if any Default or
Event of Default has occurred and is continuing prior to the effectiveness of any such increase or
would arise after giving effect thereto.



SECTION 2.10. Repayment of Loans; Evidence of Debt.



(a) (i) Each Borrower hereby unconditionally promises to pay to the Applicable Agent for the
accounts of the applicable Lenders the then unpaid principal amount of each Borrowing of such
Borrower no later than the Maturity Date; and (ii) the Company hereby unconditionally promises to
pay to each Swingline Lender the then unpaid principal amount of each Swingline Loan made by such
Swingline Lender on the earlier of the Maturity Date and the first date after such Swingline Loan
is made that is the 15th or last day of a calendar month and is at least five Business
Days after such Swingline Loan is made, provided that on each date that a Revolving
Borrowing is made under a Tranche, the applicable Borrower shall repay all Swingline Loans then
outstanding under such Tranche; provided, further, that so long as the conditions
for a Borrowing have been satisfied, a Borrower may use Revolving Borrowing proceeds to repay a
Swingline Loan. Each Borrower agrees to repay the principal amount of each Loan made to such
Borrower and the accrued interest thereon in the currency of such Loan.



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



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



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



(e) Any Lender may request that Loans of any Class made by it to any Borrower be evidenced by
a promissory note. In such event, the relevant Borrower shall prepare, execute and deliver to such
Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 11.04) be represented
by one or more promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its registered assigns).


 


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SECTION 2.11. Prepayment of Loans.



(a) Any Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with paragraph (d) of this
Section, in a minimum amount equal to (i) $1,000,000 or any integral multiple of $500,000 (or the
US Dollar equivalents thereof) in excess thereof in the case of any Borrowing denominated in US
Dollars or an Alternative Currency other than Euro, or (ii) €1,000,000 or any integral multiple of
€500,000 in excess thereof in the case of any Borrowing denominated in Euro.



(b) In the event and on such occasion that (i) the sum of the US Tranche Revolving Exposures
exceeds the total US Tranche Revolving Commitments, (ii) the sum of the Foreign Tranche Exposures
exceeds the total Foreign Tranche Commitments, or (iii) the sum of the Malaysian Tranche Exposures
exceeds the total Malaysian Tranche Commitments, the Borrowers under the applicable Tranche shall
prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding in
such Tranche, deposit cash collateral in an account with the Administrative Agent pursuant to
Section 2.05(j), in the case of the US Tranche, or deposit cash collateral in an account with the
applicable Global Agent), in an aggregate amount equal to such excess; provided that if such excess
arises solely as a result of currency rate fluctuations and such excess under any Tranche is not
greater than 5% of the total Commitments under such Tranche, such prepayment or deposit, as the
case may be, shall not be required.



(c) Prior to any optional or mandatory prepayment of Borrowings hereunder, the applicable
Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in
the notice of such prepayment pursuant to paragraph (d) of this Section.



(d) The applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify
the Applicable Agent (and, in the case of prepayment of a Swingline Loan, the applicable Swingline
Lender) by telephone (or by e-mail in accordance with Section 11.01 with respect to the
Administrative Agent, and in any event as confirmed by telecopy) of any prepayment of a Borrowing
hereunder (i) in the case of a Eurocurrency Borrowing, not later than 2:00 p.m., Local Time, three
Business Days before the date of such prepayment, and (ii) in the case of an ABR Borrowing or a
Swingline Loan, not later than 2:00 p.m., Local Time, on the date of such prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the principal amount of each
Borrowing or portion thereof to be prepaid; provided that, if a notice of optional
prepayment is given in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08(c), then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08(c). Promptly following receipt of any such
notice, the Applicable Agent shall advise the applicable Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in
the prepaid Borrowing. Prepayments shall be accompanied by (i) accrued interest to the extent
required by Section 2.13 and (ii) break funding payments pursuant to Section 2.16.


 


53









 





SECTION 2.12. Fees.



(a) The Company agrees to pay to the Administrative Agent for the account of each US Tranche
Lender a facility fee, which shall accrue at the Applicable Rate on the daily amount of the US
Tranche Revolving Commitment of such US Tranche Lender (whether used or unused) during the period
from and including the Effective Date to but excluding the date on which such US Tranche Revolving
Commitment terminates; provided that, if such US Tranche Lender continues to have any US
Tranche Revolving Exposure after its US Tranche Revolving Commitment terminates, then such facility
fee shall continue to accrue on the daily amount of such US Tranche Lender’s US Tranche Revolving
Exposure from and including the date on which its US Tranche Revolving Commitment terminates to but
excluding the date on which such Lender ceases to have any US Tranche Revolving Exposure. The
Foreign Borrowers jointly and severally agree to pay to the applicable Global Agent for the account
of each Foreign Tranche Lender a facility fee, which shall accrue at the Applicable Rate on the
daily amount of the Foreign Tranche Commitment of such Foreign Tranche Lender (whether used or
unused) during the period from and including the Effective Date to but excluding the date on which
such Foreign Tranche Commitment terminates; provided that, if such Foreign Tranche Lender
continues to have any Foreign Tranche Exposure after its Foreign Tranche Commitment terminates,
then such facility fee shall continue to accrue on the daily amount of such Foreign Tranche
Lender’s Foreign Tranche Exposure to but excluding the date on which such Foreign Tranche Lender
ceases to have any Foreign Tranche Exposure; provided, further, that (x) to the
extent the Company has received Borrowings under the Foreign Tranche, the Company shall pay that
portion of the facility fee under the Foreign Tranche that ratably corresponds with its Borrowings
thereunder, with the Foreign Borrowers paying the remainder thereof and (y) as to the Foreign
Tranche, the facility fees shall be allocated pro rata among the Company and the Foreign Borrowers
at the end of the Availability Period. The Malaysian Borrower agrees to pay to the applicable
Global Agent for the account of each Malaysian Tranche Lender a facility fee, which shall accrue at
the Applicable Rate on the daily amount of the Malaysian Tranche Commitment of such Malaysian
Tranche Lender (whether used or unused) during the period from and including the Effective Date to
but excluding the date on which such Malaysian Tranche Commitment terminates; provided
that, if such Malaysian Tranche Lender continues to have any Malaysian Tranche Exposure after its
Malaysian Tranche Commitment terminates, then such facility fee shall continue to accrue on the
daily amount of such Malaysian Tranche Lender’s Malaysian Tranche Exposure to but excluding the
date on which such Malaysian Tranche Lender ceases to have any Malaysian Tranche Exposure. Accrued
facility fees shall be payable in arrears on the last day of February, May, August and November of
each year and on the date on which the applicable Commitments terminate, commencing on the first
such date to occur after the date hereof; provided that any facility fees accruing after the date
on which the applicable Commitments terminate shall be payable on demand. All facility fees shall
be computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). Any payment required to be made
pursuant to this paragraph (a) by the Company to a Global Agent shall be made to the Administrative
Agent, as a sub-agent for such Global Agent, as applicable, in


 


54









 






New York, New York for the account
of the applicable Lenders. Any payment required to be made pursuant
to this paragraph (a) by the Malaysian Borrower to a Global Agent shall be made to the Applicable
Agent in Kuala Lumpur, Malaysia for the account of the applicable Lenders. For purposes of
computing the average daily amount of any LC Exposure for any period under this Section 2.12(a),
the average daily amount of the Alternative Currency LC Exposure for such period shall be
calculated by multiplying (i) the average daily balance of each Alternative Currency Letter of
Credit (expressed in the currency in which such Alternative Currency Letter of Credit is
denominated) by (ii) the Exchange Rate for each such Alternative Currency in effect on the last
Business Day of such period or by such other reasonable method that the Administrative Agent deems
appropriate. The Company shall pay any facility fee described hereunder that is not paid by any
other Borrower when due.



(b) The Company agrees to pay (i) to the Administrative Agent for the account of each Lender a
participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Rate used to determine the interest rate applicable to Eurocurrency Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting
fee equal to 0.125% times the average daily amount of the LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) with respect to Letters of Credit
issued by such Issuing Bank, during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, as well as each Issuing Bank’s standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including the last day of
February, May, August, and November of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate shall be payable on demand.
Any other fees payable to any Issuing Bank pursuant to this paragraph shall be payable within 10
days after demand. All participation fees and fronting fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). For purposes of computing the average daily amount of any LC
Exposure for any period under this Section 2.12(b), the average daily amount of the Alternative
Currency LC Exposure for such period shall be calculated as set forth in paragraph (a) above.



(c) The Company agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Company and the Administrative
Agent. The Company and the Borrowers jointly and severally agree to pay to the Global Agents, for
their own account, fees payable in the amounts and at the times separately agreed upon between the
Company and the Global Agents.



(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Applicable Agent (or to the applicable Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.


 


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SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (other than each Swingline Loan) shall bear
interest at the Alternate Base Rate plus the Applicable Rate for ABR Loans. US Tranche
Swingline Loans shall bear interest at a rate per annum equal to the US Swingline Rate plus
the Applicable Rate for ABR Loans. Foreign Tranche Swingline Loans shall bear interest at a rate
per annum equal to the Foreign Tranche Swingline Rate plus the Applicable Rate for
Eurocurrency Revolving Loans plus the Mandatory Cost.



(b) The Loans comprising each Eurocurrency Borrowing by the Company under the US Tranche shall
bear interest at the Applicable Interbank Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate. The Loans comprising each Eurocurrency Borrowing by the Company
or a Foreign Borrower under the Foreign Tranche, shall bear interest at the Applicable Interbank
Rate for the Interest Period then in effect for such Borrowing plus the Applicable Rate
plus the Mandatory Cost. The Loans comprising each Eurocurrency Borrowing by the Malaysian
Borrower under the Malaysian Tranche shall bear interest at the Applicable Interbank Rate for the
Interest Period then in effect for such Borrowing plus the Applicable Rate plus the
Mandatory Cost.



(c) Notwithstanding the foregoing, during the continuance of an Event of Default the Required
Lenders may, at their option, by notice to the Company (which notice may be revoked at the option
of the Required Lenders notwithstanding any provision of Section 11.02(b) requiring unanimous
consent of the Lenders to changes in interest rates), declare that (i) each Borrowing shall bear
interest at the rate otherwise applicable thereto plus 2% per annum, (ii) the Letter of Credit
participation fee provided for in Section 2.12(b) shall be increased by 2% per annum, and (iii) all
other then outstanding Obligations which are then due and owing (such as fees and expenses) bear
interest at 2% per annum; provided that, during the continuance of an Event of Default
described in clause (h) or (i) of Article VII, the interest rates set forth in clause (i) above,
the increase in the Letter of Credit participation fee set forth in clause (ii) above, and the
accrual of interest described in clause (iii) above shall be applicable to all Borrowings, Letters
of Credit and other amounts without any election or action on the part of any Agent or any Lender.



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



(e) Subject to Section 2.13(f), all interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate Base Rate at times
when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of
365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate and the Applicable Interbank Rate shall be determined by the Applicable
Agent, and such determination shall be conclusive absent manifest error.


 


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(f) The principle of deemed reinvestment of interest shall not apply to any interest
calculation under this Agreement. The rates of interest stipulated in this Agreement are intended
to be nominal rates and not effective rates or yields.



(g) Notwithstanding any other provision of this Agreement, if and to the extent that the laws
of any jurisdiction in which a Borrower is organized or from which Loans are made are applicable to
interest payable under this Agreement, no interest on the credit advanced will be payable in excess
of that permitted by such laws.



SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurocurrency Borrowing in any
currency:



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



(b) the Applicable Agent is advised by a majority in interest of the Lenders that would
participate in such Borrowing that the Applicable Interbank Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period;



then the Applicable Agent shall give notice thereof to the applicable Borrower and the applicable
Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Applicable
Agent notifies the applicable Borrower and the applicable Lenders that the circumstances giving
rise to such notice no longer exist (i) any Interest Election Request that requests the conversion
of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing in such currency
shall be ineffective, and such Borrowing shall be converted to or continued on the last day of the
Interest Period applicable thereto (A) if such Borrowing is a Eurocurrency Borrowing by the Company
under the US Tranche, as an ABR Borrowing, or (B) if such Borrowing is a Eurocurrency Borrowing by
the Company or a Foreign Borrower under the Foreign Tranche, or a Eurocurrency Borrowing by the
Malaysian Borrower under the Malaysian Tranche, as a Borrowing bearing interest at such rate as the
applicable Global Agent shall determine, after consultation with the Lenders, adequately reflects
the costs to the applicable Lenders of making or maintaining their Loans, and (ii) if any Borrowing
Request requests a Eurocurrency Borrowing in such currency, unless the applicable Borrower notifies
the Applicable Agent in writing prior to the date on which such Borrowing is requested to be made
that it wishes to revoke such Borrowing Request, (A) if such Borrowing is a Eurocurrency Borrowing
by the Company under the US Tranche, such Borrowing shall be made as an ABR Borrowing, (B) if such
Borrowing is a Eurocurrency Borrowing by the Company or a Foreign Borrower under the Foreign
Tranche, such Borrowing shall be made as a Borrowing bearing interest at such rate as the
applicable Global Agent shall determine adequately reflects the costs to the applicable Lenders of
making or maintaining their Loans, plus the Applicable Rate for Eurocurrency Loans
plus the Mandatory Cost, and (C) if such Borrowing is a Eurocurrency Borrowing by the
Malaysian Borrower under the Malaysian Tranche, such Borrowing shall be made as a
Borrowing bearing interest at such rate as the applicable Global Agent shall determine adequately
reflects the costs to the applicable Lenders of making or maintaining their Loans, plus the
Applicable Rate for Eurocurrency Loans plus the Mandatory Cost.


 


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SECTION 2.15. Increased Costs. (a) If any Change in Law shall:




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




(ii) impose on any Lender or Issuing Bank or the Applicable Interbank Markets any other
condition affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter
of Credit or participation therein; or




(iii) subject any Agent, any Lender or any Issuing Bank to any Taxes (other than (A)
Indemnified Taxes and Other Taxes or (B) Excluded Taxes) on its loans, letters of credit,
commitments, or other obligations, or its deposits, reserves, other liabilities or capital
attributable thereto;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the
cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of
Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank
hereunder (whether of principal, interest or otherwise), then the applicable Borrower will pay to
such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.



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



(c) A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary to
compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section shall be delivered to the Company and shall be conclusive
absent manifest error. The Company shall pay or cause the
other Borrowers to pay such Lender or Issuing Bank, as the case may be, the amount shown as
due on any such certificate within 10 days after receipt thereof.


 


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(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant
to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand
such compensation; provided that the Company and the other Borrowers shall not be required
to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, 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 Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 270-day period referred to above shall be extended to include
the period of retroactive effect thereof.



SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of any Eurocurrency Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an Event of Default),
(b) the conversion of any Eurocurrency Loan to a Loan of a different Type or Interest Period other
than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice may be revoked under Section 2.11(d) and is revoked in
accordance therewith), or (d) the assignment or deemed assignment of any Eurocurrency Loan other
than on the last day of the Interest Period applicable thereto as a result of a request by the
Company pursuant to Section 2.20 or the CAM Exchange, then, in any such event, the applicable
Borrower shall compensate each Lender for the loss, cost and expense attributable to such event.
In the case of a Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest
that would have accrued on the principal amount of such Loan had such event not occurred, at the
Applicable Interbank Rate that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor (or, in the case of
a failure to borrow, convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest that would accrue on such principal amount for
such period at the interest rate such Lender would bid were it to bid, at the commencement of such
period, for deposits in the applicable currency of a comparable amount and period from other banks
in the Applicable Interbank Market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section, and setting forth in
reasonable detail the calculations used by such Lender to determine such amount or amounts, shall
be delivered to the applicable Borrower and shall be conclusive absent manifest error. The
applicable Borrower shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.


 


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SECTION 2.17. Taxes.



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



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



(c) The relevant Borrower shall indemnify each Agent, each Lender and each Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by such Agent, such Lender or such Issuing Bank, as the case may be, on or with respect
to any payment by or on account of any obligation of such Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest (except as such penalties and interest are attributable to the gross
negligence or willful delay of any Agent, Lender or Issuing Bank) and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to the Company by a Lender or Issuing Bank, or
by an Agent on its own behalf or on behalf of a Lender or Issuing Bank, shall be conclusive absent
manifest error.



(d) 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) 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 under a Tranche in which such Lender
participates is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to such Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law and reasonably requested by such
Borrower, any such properly completed and executed documentation prescribed by applicable law and
reasonably requested by such Borrower as may permit such payments to be made without withholding or
at a reduced rate of withholding tax.



(f) Each Lender, on the date it becomes a Lender hereunder, will designate lending offices for
the Loans to be made by it (a “Facility Office”) such that, on such date, it (directly or
through any Borrower) will not be liable for (i) in the case of a US Tranche Lender, any
withholding tax that is imposed by the United States of America (or any political subdivision
thereof) on payments by the Company from an office within such jurisdiction, (ii) in the case of a
Foreign Tranche Lender, any withholding tax that is imposed by the United States of America,
Australia, Belgium or such other jurisdiction in which a Foreign Borrower is organized and receives


 


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extensions
of credit (or any political subdivision thereof) on payments by the Company or the applicable Foreign Borrower from an office within such jurisdiction, or (iii) in the
case of a Malaysian Tranche Lender, any withholding tax that is imposed by Malaysia (or any
political subdivision thereof) on payments by the Malaysian Borrower from an office within such
jurisdiction. If any Lender does not comply with this Section 2.17(e) or (f), the relevant
Borrower shall have no obligation to indemnify such Lender, or any relevant Agent or Issuing Bank
for the account of such Lender, under this Section 2.17, provided, however, (x)
that such Borrower shall not be relieved of the foregoing indemnity obligation if the Company or
the applicable Borrower shall fail to comply with the requirements of Section 2.21(a)(ii) and (y)
that such Borrower shall not be relieved of the foregoing indemnity obligation if a liability under
this Section results solely from the occurrence of the CAM Exchange.



(g) In cases in which a Borrower makes a payment under this Agreement to a U.S. person with
knowledge that such U.S. person is acting as an agent for a foreign person, such Borrower will not
treat such payment as being made to a U.S. person for purposes of Treas. Reg. § 1.1441-1(b)(2)(ii)
(or a successor provision) without the express written consent of such U.S. person.



(h) If the Administrative Agent or a Lender receives a refund of any Taxes or Other Taxes as
to which it has been indemnified by a Borrower or with respect to which a Borrower has paid
additional amounts pursuant to this Section 2.17, it shall pay over such refund to such Borrower
(but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower
under this Section 2.17 with respect to the Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such refund,
and only to the extent that the amount of such refund is both reasonably identifiable and
quantifiable by such Lender without imposing on such Lender an unacceptable administrative burden);
provided, that such Borrower, upon the request of the Administrative Agent or such Lender,
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 or such Lender
in the event the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the Administrative Agent or
any Lender to make available its tax returns (or any other information relating to its taxes which
it deems confidential) to any Borrower or any other Person.



(i) Each Lender shall severally indemnify the Applicable Agent for any Taxes (but, in the case
of any Indemnified Taxes, only to the extent that any Loan Party has not already indemnified the
Applicable Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties
to do so) attributable to such Lender that are paid or payable by the Applicable Agent in
connection with any Loan Document and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The indemnity under this Section 2.17(i) shall be paid within 10 days after
the Applicable Agent delivers to the applicable Lender a certificate stating the amount of Taxes so
paid or payable by the Applicable Agent. Such certificate shall be conclusive of the amount so paid
or payable absent manifest error.



SECTION 2.18. Intentionally Omitted.


 


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SECTION 2.19. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) Each Borrower shall make each payment required to be made by it hereunder or under any
other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.15, 2.16, 2.17 or 2.18, or otherwise) prior to the time
expressly required hereunder or under such other Loan Document for such payment (or, if no such
time is expressly required, prior to 12:00 noon, Local Time), on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after such time on any date
may, in the discretion of the Applicable Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be
made to the Applicable Agent to the applicable account specified in Schedule 2.19 or, in any such
case, to such other account as the Applicable Agent shall from time to time specify in a notice
delivered to the Company, except payments to be made directly to an Issuing Bank or a Swingline
Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17,
2.18 and 11.03 shall be made directly to the Persons entitled thereto and payments pursuant to the
other Loan Documents shall be made to the Persons specified therein. The Applicable Agent shall
distribute any such payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder or under any other Loan
Document shall be due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments under any Loan Document of
principal or interest in respect of any Loan or LC Disbursement shall be made in the currency of
such Loan or LC Disbursement, and all other payments hereunder or under any other Loan Document
shall in the case of a payment by the Malaysian Borrower be made in Ringgit Malaysia, and in any
other case, be made in US Dollars, except as otherwise expressly provided. Any payment required to
be made by an Agent hereunder shall be deemed to have been made by the time required if such Agent
shall, at or before such time, have taken the necessary steps to make such payment in accordance
with the regulations or operating procedures of the clearing or settlement system used by such
Agent to make such payment. Any payment required to be made by a Borrower hereunder shall be
deemed to have been made by the time required if such Borrower shall, at or before such time, have
taken the necessary steps to make such payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by such Borrower to make such payment.



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


 


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



(d) Unless the Applicable Agent shall have received notice from the relevant Borrower prior to
the date on which any payment is due for the account of all or certain of the Lenders or Issuing
Banks hereunder that such Borrower will not make such payment, the Applicable 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 applicable Lenders or Issuing Banks, 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
applicable Lenders or Issuing Banks, as the case may be, severally agrees to repay to the
Applicable Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with
interest thereon, for each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Applicable Agent, at a rate determined by the Applicable Agent
in accordance with banking industry practices on interbank compensation.



(e) If any Lender shall fail to make any payment required to be made by it to any Agent
pursuant to this Agreement, then the Agents may, in their discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by them for the account of such Lender to
satisfy such Lender’s obligations to the Agents until all such unsatisfied obligations are fully
paid.



SECTION 2.20. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.15, 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 2.17, then such Lender shall use reasonable efforts to designate
a different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender
to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.


 


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(b) If any Lender requests compensation under Section 2.15, 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 2.17, or if any Lender becomes a Defaulting Lender, or if any Lender refuses to
consent to certain proposed changes, waivers, discharges or terminations with respect to this
Agreement or any other Loan Document requiring the consent of the Required Lenders or all Lenders
(or all affected Lenders) pursuant to Section 11.02, and the same has been approved by such
Lenders, as applicable (or would have been approved by such Lenders with the disapproving Lender’s
consent), then the Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 11.04), all its interests, rights and
obligations under the Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent (and if a US Tranche
Revolving Commitment or a Foreign Tranche Commitment is being assigned, each Issuing Bank), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Company (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or payments required to be
made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.



SECTION 2.21. Designation of Subsidiary Borrowers. (a) The Company may at any time and from time to time designate any Foreign Subsidiary
(other than one organized under the laws of Malaysia or a political subdivision thereof) as a
Foreign Borrower with the ability to request credit under the Foreign Tranche upon satisfaction of
the following conditions:




(i) The Administrative Agent shall have received a Borrowing Subsidiary Agreement
executed by such Subsidiary and the Company.




(ii) The Administrative Agent shall have received evidence satisfactory to the
Administrative Agent that (A) no withholding tax shall apply to any sum payable by such
Subsidiary to any Lender under the Loan Documents, (B) gross-up obligations contained in the
Loan Documents protect the Administrative Agent and the Lenders from any economic effect of
such withholding obligations, and (C) the laws and regulations of the jurisdictions in which
such Subsidiary is organized and is located permit extensions of credit and other financial
accommodations from the United States of America into such jurisdictions.


 


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(iii) The Lenders shall have received all documentation and other information required
by bank regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including the U.S.A. Patriot Act and (if applicable) the
Money Laundering Regulations 2003 of the United Kingdom (as amended) in respect of such
Subsidiary, including, without limitation, an update of Schedule 3.01.




(iv) The Collateral Agent shall have received a pledge of certain of the Equity
Interests of such Foreign Subsidiary (as contemplated by the Foreign Subsidiary Pledge
Agreement) if such Foreign Subsidiary is directly owned by the Company or a Subsidiary
Guarantor.




(v) The Administrative Agent shall have received organizational documents, authorizing
resolutions, officers’ certificates, legal opinions and such other instruments, documents
and agreements in respect of such Subsidiary as the Administrative Agent may reasonably
request.



(b) Upon satisfaction of the conditions set forth in paragraph (a) of this Section 2.21, such
Subsidiary shall for all purposes of this Agreement be a Borrower with the ability to request
credit under the Foreign Tranche, and a party to this Agreement until the Company shall have
executed and delivered to the Administrative Agent a Borrowing Subsidiary Termination with respect
to such Subsidiary, whereupon such Subsidiary shall cease to be a Borrower, and a party to this
Agreement. Notwithstanding the preceding sentence, (x) no particular Subsidiary may be added and
terminated under this Section 2.21 more than twice during the term of this Agreement and (y) no
Borrowing Subsidiary Termination will become effective as to any Borrower at a time when any
principal of or interest on any Loan to such Borrower, shall be outstanding hereunder,
provided that such Borrowing Subsidiary Termination shall be effective to terminate the
right of such Foreign Borrower, to make further Borrowings under this Agreement. As soon as
practicable upon receipt of a Borrowing Subsidiary Agreement, the Administrative Agent shall
furnish a copy thereof to each Lender.



(c) The Borrowers acknowledge and agree that the addition of certain Foreign Subsidiaries as
Foreign Borrowers under the Foreign Tranche may require Lenders with Foreign Tranche Commitments to
possess EU Lending Passports. If each such Lender does not possess an EU Lending Passport and
otherwise is unable to extend credit under the Foreign Tranche to the proposed Foreign Borrower
without withholding tax or regulatory issues (as determined by each such Lender in its reasonable
discretion), then such Foreign Subsidiary shall not be added as a Foreign Borrower hereto.



SECTION 2.22. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:



(a) fees shall cease to accrue on the unfunded Commitment of such Defaulting Lender pursuant
to Section 2.12(a);


 


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(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be
included in determining whether the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment, waiver or other modification pursuant to Section 11.02);
provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the
case of an amendment, waiver or other modification requiring the consent of such Lender or each
Lender affected thereby;



(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:




(i) so long as no Event of Default is then outstanding, all or any part of the
Swingline Exposure and LC Exposure of such Defaulting Lender under the Tranches to which
such Defaulting Lender is subject shall be reallocated among the non-Defaulting Lenders
under the applicable Tranche in accordance with their respective Tranche Percentages, but
only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures under
such Tranche plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such
Tranche does not exceed the total of all non-Defaulting Lenders’ Commitments under such
Tranche;




(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Company shall, or shall cause the applicable Borrowers, within one (1)
Business Day following notice by the Administrative Agent (x) first, prepay such
Swingline Exposure under the applicable Tranche and (y) second, cash collateralize
for the benefit of the Issuing Bank only the Company’s or the applicable Borrower’s
obligations corresponding to such Defaulting Lender’s LC Exposure under the applicable
Tranche (after giving effect to any partial reallocation pursuant to clause (i) above) in
accordance with the procedures set forth in Section 2.05(j) for so long as such LC Exposure
under the applicable Tranche is outstanding;




(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC
Exposure under the applicable Tranche pursuant to clause (ii) above, the Company and the
Borrowers under such Tranche shall not be required to pay any fees to such Defaulting Lender
pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure under such
Tranche during the period such Defaulting Lender’s LC Exposure under such Tranche is cash
collateralized and such Lender remains a Defaulting Lender;




(iv) if the LC Exposure under the applicable Tranche of the non-Defaulting Lenders
under such Tranche is reallocated pursuant to clause (i) above, then the fees payable to the
Lenders pursuant to Section 2.12(b) shall be adjusted in accordance with such non-Defaulting
Lenders’ Tranche Percentages under such Tranche; and




(v) if all or any portion of such Defaulting Lender’s LC Exposure under the applicable
Tranche is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above,
then, without prejudice to any rights or remedies of the Issuing Bank or any other Lender
hereunder, all facility fees that otherwise would have been payable to such Defaulting
Lender (solely with respect to the portion of such Defaulting Lender’s
Commitment under such Tranche that was utilized by such LC Exposure under such Tranche)
and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting
Lender’s LC Exposure under such Tranche shall be payable to the Issuing Bank until and to
the extent that such LC Exposure under such Tranche is reallocated and/or cash
collateralized; and


 


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(d) so long as such Lender is a Defaulting Lender, the Swingline Lender(s) under the
applicable Tranche shall not be required to fund any Swingline Loan thereunder, and the Issuing
Bank shall not be required to issue, amend or increase any Letter of Credit under such Tranche,
unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC
Exposure under such Tranche will be 100% covered by the Commitments of the non-Defaulting Lenders
under such Tranche and/or cash collateral will be provided by the Company in accordance with
Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly
issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders under such
Tranche in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not
participate therein).



If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the
date hereof and for so long as such event shall continue or (ii) the Swingline Lender(s) or the
Issuing Bank under the applicable Tranche has a good faith belief that any Lender has defaulted in
fulfilling its obligations under one or more other agreements in which such Lender commits to
extend credit, the applicable Swingline Lender shall not be required to fund any Swingline Loan
under such Tranche and the Issuing Bank shall not be required to issue, amend or increase any
Letter of Credit under such Tranche, unless such Swingline Lender or the Issuing Bank, as the case
may be, shall have entered into arrangements with the Company or such Lender, satisfactory to such
Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of
such Lender hereunder.



In the event that the Administrative Agent, the Company, the applicable Swingline Lender and
the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the
Lenders under the applicable Tranche shall be readjusted to reflect the inclusion of such Lender’s
Commitment under such Tranche and on such date such Lender shall purchase at par such of the Loans
of the other Lenders (other than Swingline Loans) under such Tranche as the Administrative Agent
shall determine may be necessary in order for such Lender to hold such Loans in accordance with its
Tranche Percentage and such Lender shall no longer constitute a Defaulting Lender.



ARTICLE III




Representations and Warranties




Each Borrower represents and warrants to the Lenders that:



SECTION 3.01. Organization; Powers. Each of the Company and its Subsidiaries is duly organized, validly existing and in good
standing (to the extent that such concept is applicable in the relevant jurisdiction) under the
laws of the jurisdiction of its
organization or incorporation, has all requisite power and authority to carry on its business
as now conducted and, except where the failure to do so, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing (to the extent such concept is applicable) in, every jurisdiction where
such qualification is required. The information for each of the Borrowers set forth in Schedule
3.01 is true, accurate and complete as of the Effective Date.


 


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SECTION 3.02. Authorization; Enforceability. The Transactions are within each Borrower’s corporate powers and have been duly authorized
by all necessary corporate and, if required, stockholder or shareholder action. This Agreement has
been duly executed and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law. Each Borrowing Subsidiary Agreement has been duly executed and
delivered by the Borrower party thereto and constitutes a legal, valid and binding obligation of
such Borrower, enforceable against such Borrower in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law. The Subsidiary Guarantee Agreement has been duly executed and
delivered by each Subsidiary Guarantor and constitutes a legal, valid and binding obligation of
such Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.



SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except such as have been obtained or made
and are in full force and effect, (b) will not violate any material applicable law or regulation
applicable to the Company or its Subsidiaries, and will not violate the charter, by-laws or other
organizational or constitutional documents of the Company or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under any material
indenture, agreement or other instrument binding upon the Company or any of its Subsidiaries or its
assets, or give rise to a right thereunder to require any Material Indebtedness to be paid by the
Company or any of its Subsidiaries, and (d) will not result in the creation or imposition of any
Lien on any asset of the Company or any of its Subsidiaries (other than the Lien created by the
Foreign Subsidiary Pledge Agreement). In the case of the Malaysian Borrower, it is not aware of
any fact which would cause any Malaysian Tranche Lender to be in contravention of Section 62(1) of
the Banking & Financial Institutions Act, 1989 of Malaysia or any similar limit or restriction as
notified to the Malaysian Borrower that may be imposed upon the Malaysian Tranche Lenders from time
to time by Bank Negara Malaysia or other Governmental Authority having jurisdiction over the
Malaysian Tranche Lenders.


 


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SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Company has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows as of and for the fiscal year ended August
31,
2010, reported on by PricewaterhouseCoopers LLP, independent public accountants. Such
financial statements present fairly, in all material respects, the financial position and results
of operations and cash flows of the Company and its consolidated Subsidiaries as of such dates and
for such periods in accordance with GAAP.



(b) Since August 31, 2010, there has been no material adverse change in the business, assets
or financial condition of the Company and its Subsidiaries, taken as a whole.



SECTION 3.05. Properties; Insurance. (a) Each of the Company and its Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business, except for minor defects
in title that do not interfere with its ability to conduct its business as currently conducted or
to utilize such properties for their intended purposes.



(b) Each of the Company and its Subsidiaries owns, is licensed, or otherwise has in its
possession and uses all trademarks, tradenames, copyrights, patents and other intellectual property
necessary to conduct its business as presently conducted. The Company and its Subsidiaries have
not received any written notice that their respective use of any of the foregoing infringes in any
material respect upon the intellectual property rights of any other Person.



(c) Each of the Company and its Subsidiaries maintains, with financially sound insurance
companies, insurance in such amounts and against such risks as are customarily maintained by
companies engaged in the same or similar businesses operating in the same or similar locations;
provided, that each of the Company and its Subsidiaries may self-insure to the same extent
as other companies engaged in similar businesses and owning similar properties in the same general
areas in which the Company or each such Subsidiary, as applicable, operates.



SECTION 3.06. Litigation, Environmental and Labor Matters. (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened against or affecting the
Company or any of its Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, would reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect or (ii) that involve this Agreement or the
Transactions.



(b) Except with respect to any matters that, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law, (ii) has received
written, or to the knowledge of the Company or any such Subsidiary, other notice that it is subject
to any Environmental Liability, or (iii) has received written, or to the knowledge of the Company
or any such Subsidiary, other notice of any claim with respect to any Environmental Liability.



(c) There are no labor controversies pending against or, to the knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries which
would reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect.


 


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SECTION 3.07. Compliance with Laws and Agreements. Each of the Company and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where the failure to do
so, individually or in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.



SECTION 3.08. Investment Company Status. Neither the Company nor any of its Subsidiaries is an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940.



SECTION 3.09. Taxes. Each of the Company and its Subsidiaries has timely filed or caused to be filed all income
and other material Tax returns and reports required to have been filed and has paid or caused to be
paid all income and other material Taxes shown on such returns and reports to be due and payable by
it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for
which the Company or such Subsidiary, as applicable, has set aside on its books adequate reserves
in accordance with GAAP, or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.



SECTION 3.10. ERISA. No ERISA Event has occurred, and no ERISA Event with respect to any Plan or Foreign Pension
Plan is reasonably expected to occur, that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, would reasonably be expected to result in a
Material Adverse Effect.



SECTION 3.11. Subsidiaries; Ownership of Capital Stock. As of the Effective Date, Schedule 3.11 sets forth all of the Company’s Subsidiaries, the
jurisdiction of organization or incorporation of each of its Subsidiaries and the identity of the
holders of all shares or other interests of each class of Equity Interests of each of its
Subsidiaries and identifies those Subsidiaries that are Material Domestic Subsidiaries.



SECTION 3.12. Disclosure. The Company has disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it,
that, as of the date hereof, individually or in the aggregate, would reasonably be expected to
result in a Material Adverse Effect. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other written information furnished by or on behalf
of the Company to any Agent, any Issuing Bank or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other information so
furnished or publicly available in periodic and other reports, proxy statements and other materials
filed by the Company or any Subsidiary with the Securities and Exchange Commission) 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, and other forward-looking
statements, the Borrowers represent only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the
time prepared (and the Lenders acknowledge that projections are not to be viewed as facts, and
are inherently unreliable, and that actual performance may differ materially from the projections).


 


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SECTION 3.13. Liens. There are no Liens on any of the real or personal properties of the Company or any
Subsidiary except for Liens permitted under Section 6.02.



SECTION 3.14. Regulation U. Margin stock (as defined in Regulation U) constitutes less than 25% of the value of those
assets of the Company and its Subsidiaries which are subject to any limitation on sale, pledge, or
other restriction hereunder.



ARTICLE IV




Conditions




SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of
Credit hereunder shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 11.02):



(a) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.



(b) The Administrative Agent (or its counsel) shall have received from each Initial Subsidiary
Guarantor either (i) a counterpart of the Subsidiary Guarantee Agreement signed on behalf of such
Subsidiary Guarantor or (ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement) that such Subsidiary
Guarantor has signed a counterpart of the Subsidiary Guarantee Agreement.



(c) The Administrative Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Jones Day, counsel for the
Company, in form and substance reasonably satisfactory to the Administrative Agent and covering
such other matters relating to the Borrowers, this Agreement or the Transactions as the Required
Lenders shall reasonably request. The Borrowers hereby request such counsel to deliver such
opinion. The Administrative Agent shall also have received favorable written opinions (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of Jones Day, special
Belgian counsel to the Borrowers, Allens Arthur Robinson, special Australian counsel to the
Borrowers, and Zaid Ibrahim & Co., special Malaysian counsel to the Borrowers, in each case in form
and substance reasonably acceptable to the Administrative Agent and covering such matters relating
to this Agreement or the Transaction as the Required Lenders shall reasonably request. The
Borrowers hereby request such counsel to deliver such opinions.


 


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(d) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence
and good standing of the Borrowers and the Initial Subsidiary Guarantors, the authorization of the
Transactions and any other legal matters relating to the Borrowers or any Initial Subsidiary
Guarantor, this Agreement or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel, including all of the agreements, documents and instruments
set forth in Exhibit F hereto.



(e) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by a Financial Officer, confirming compliance with the conditions set forth in paragraphs
(a) and (b) of Section 4.02.



(f) The Administrative Agent, the Lead Arranger and the Lenders shall have received all other
fees and other amounts due and payable on or prior to the Effective Date, including, to the extent
invoiced and received no less than three days in advance, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder.



(g) The Lenders shall have received all documentation and other information required by bank
regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including the U.S.A. Patriot Act, (if applicable) the Money Laundering Regulations
2003 of the United Kingdom (as amended), and (if applicable) the Anti-Money Laundering &
Anti-Terrorism Financing Act, 2001 of Malaysia (as amended) and the relevant guidelines issued by
Bank Negara Malaysia thereunder.



(h) The Administrative Agent shall have received a fully executed copy of the Collateral
Sharing Agreement in the form attached hereto as Exhibit E.



(i) The Administrative Agent shall have received fully executed copies of amendments to the
Senior Notes and the Senior Note Purchase Agreement, with such amendments being in form and
substance acceptable to the Administrative Agent.



(j) The Administrative Agent shall have received, in form and substance acceptable to it, a
fully executed copy of the Foreign Subsidiary Pledge Agreement.



(k) The Administrative Agent shall have received (i) audited consolidated financial statements
of the Company for the fiscal years ended August 31, 2009 and August 31, 2010, and (ii) unaudited
interim consolidated financial statements of the Company for each quarterly period ended subsequent
to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph
with respect to which such financial statements are available.



The Administrative Agent shall notify the Borrowers and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 11.02) at or prior to 3:00 p.m., New York City time, no later than January 7, 2011 (and, in
the event such conditions are not so satisfied or waived, the Commitments shall terminate at such
time).


 


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SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of each
Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction
of the following conditions:



(a) The representations and warranties of the Borrowers set forth in each Loan Document shall
be true and correct in all material respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except to the
extent any such representation or warranty is stated to relate solely to an earlier date, in which
case such representation or warranty shall have been true and correct in all material respects on
and as of such earlier date.



(b) At the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have
occurred and be continuing.



(c) No law or regulation shall prohibit, and no order, judgment or decree of any Governmental
Authority shall enjoin, prohibit or restrain, any Lender from making the requested Loan or any
Issuing Bank or Lender from issuing, renewing, extending or increasing the face amount of or
participating in the Letter of Credit requested to be issued, renewed, extended or increased.



(d) Schedule 3.01 shall be true, accurate and complete as the date such Borrowing, issuance,
amendment, renewal or extension is requested and as of the date such Borrowing, issuance,
amendment, renewal or extension is made or otherwise given effect, and the applicable Borrower
shall represent and warrant thereto.



Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.



ARTICLE V




Affirmative Covenants




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



SECTION 5.01. Financial Statements and Other Information. The Company will furnish to the Administrative Agent and each Lender:



(a) within 90 days after the end of each fiscal year of the Company, its audited consolidated
balance sheet and related statements of operations, stockholders’ equity and cash flows as of the
end of and for such year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of the Company and its consolidated Subsidiaries on a consolidated
basis in

 


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accordance with GAAP consistently applied; provided, that the Company shall be
deemed to have delivered the foregoing to the Administrative Agent and the Lenders if such
information has been filed with the Securities and Exchange Commission and is available on the
EDGAR site at www.sec.gov or any successor government site that is freely and readily available to
the Administrative Agent and the Lenders without charge, or has been made available on the
Company’s website www.aschulman.com, and the delivery date therefor shall be deemed to be the first
day on which such information is available to the Administrative Agent and the Lenders on one of
such web pages; provided, further, that the Company will promptly notify the
Administrative Agent and the Lenders of each posting to such sites upon the occurrence thereof.



(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal
year of the Company, its unaudited consolidated balance sheet and related unaudited statements of
operations, stockholders’ equity, and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of operations of the Company
and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of footnotes;
provided, that the Company shall be deemed to have delivered the foregoing to the
Administrative Agent and the Lenders if such information has been filed with the Securities and
Exchange Commission and is available on the EDGAR site at www.sec.gov or any successor government
site that is freely and readily available to the Administrative Agent and the Lenders without
charge, or has been made available on the Company’s website www.aschulman.com, and the delivery
date therefor shall be deemed to be the first day on which such information is available to the
Administrative Agent and the Lenders on one of such web pages; provided, further,
that the Company will promptly notify the Administrative Agent and the Lenders of each posting to
such sites upon the occurrence thereof.



(c) no later than 15 Business Days after the 90th day after the end of each of the
Company’s fiscal years (as contemplated in Section 5.01(a)), and no later than 15 Business Days
after the 60th day after the end of each of the Company’s first three fiscal quarters of
each fiscal year (as contemplated in Section 5.01(b)), a certificate of a Financial Officer of the
Company (i) certifying as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken with respect thereto,
(ii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.09, and
(iii) stating whether any change in GAAP or in the application thereof has occurred since the date
of the audited financial statements referred to in Section 3.04 and, if any such change has
occurred specifying the effect of such change on the financial statements accompanying such
certificate.



(d) concurrently with the delivery of any compliance certificate with annual financials as
required under clause (c) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may be limited to
the extent required by accounting rules or guidelines);


 


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(e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Company or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with national securities exchanges (other than immaterial
correspondence filed in the ordinary course of business and comment letters received from the
Securities and Exchange Commission or responses thereto), or distributed by the Company or any
Subsidiary thereof to its shareholders generally, as the case may be; provided, that the
Company shall be deemed to have delivered the foregoing to the Administrative Agent and the Lenders
if such information has been filed with the Securities and Exchange Commission and is available on
the EDGAR site at www.sec.gov or any successor government site that is freely and readily available
to the Administrative Agent and the Lenders without charge, or has been made available on the
Company’s website www.aschulman.com, and the delivery date therefor shall be deemed to be the first
day on which such information is available to the Administrative Agent and the Lenders on one of
such web pages; provided, further, that the Company will promptly notify the
Administrative Agent and the Lenders of each posting to such sites upon the occurrence thereof;



(f) promptly following any request therefor, all documentation and other information required
by bank regulatory authorities under applicable “know your customer” and anti-money laundering
rules and regulations, including the U.S.A. Patriot Act and (if applicable) the Money Laundering
Regulations 2003 of the United Kingdom (as amended) and;



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



SECTION 5.02. Notices of Material Events. The Company will furnish to the Administrative Agent and each Lender prompt written notice
of the following:



(a) the occurrence of any Default;



(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Company or any Affiliate thereof that, if
adversely determined, would reasonably be expected to result in a Material Adverse Effect;



(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that
have occurred, could reasonably be expected to result in liability of the Company and its
Subsidiaries in an aggregate amount exceeding $25,000,000;



(d) any other development (other than a development with respect to a Multiemployer Plan,
unless such development is the occurrence of an ERISA Event with respect to such Multiemployer
Plan) that results in, or could reasonably be expected to result in, a Material Adverse Effect; and


 


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(e) any change to Schedule 3.01, including, without limitation, all corrections thereto in
order for such Schedule to remain true, accurate and complete.



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



SECTION 5.03. Existence; Conduct of Business. The Company will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of its business,
except for such rights, licenses, permits, privileges and franchises the loss of which, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect; provided that the foregoing shall not prohibit any merger, amalgamation, consolidation,
liquidation or dissolution permitted under Section 6.03.



SECTION 5.04. Payment of Obligations. The Company will, and will cause each of its Subsidiaries to, pay its obligations,
including Tax liabilities, that, if not paid, would result in a Material Adverse Effect before the
same shall become delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Company or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest would not reasonably be expected to result in a
Material Adverse Effect.



SECTION 5.05. Maintenance of Properties; Insurance. The Company will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and condition (ordinary wear
and tear excepted), and (b) maintain, with financially sound insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.



SECTION 5.06. Books and Records; Inspection Rights. The Company will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries in all material respects are made of all
dealings and transactions in relation to its business and activities. The Company will, and will
cause each of its Subsidiaries to, permit any representatives designated by the Administrative
Agent, upon reasonable prior notice, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and as often as reasonably
requested. The Company shall only be required to reimburse the Administrative Agent for reasonable
costs and expenses incurred in connection with visits and inspections made during the continuance
of an Event of Default.



SECTION 5.07. Compliance with Laws. The Company will, and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its property, except where
the failure to do so,
individually or in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect.


 


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SECTION 5.08. Use of Proceeds and Letters of Credit. Each Borrower will use the proceeds of the Loans and the Letters of Credit, as applicable,
for general corporate purposes, including the repayment of certain Indebtedness and the repurchase
of certain of the Borrowers’ Equity Interests, and for Permitted Acquisitions. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and X, or, in the case
of the Malaysian Borrower, any applicable Malaysian foreign exchange regulations.



SECTION 5.09. Additional Subsidiary Guarantors; Pledges of Equity Interests; Collateral
Sharing Agreement. (a) The Company will cause any Person that becomes a Material Domestic Subsidiary after
the date hereof (i) to execute and deliver to the Administrative Agent, within ten Business Days
after the Company’s delivery, pursuant to Section 5.01(a) or (b), as applicable, of the financial
statements for the fiscal period at the end of which such Person first becomes a Material Domestic
Subsidiary (or such later date as may be agreed to by the Administrative Agent in its sole
discretion), a supplement to the Subsidiary Guarantee Agreement, in the form prescribed therein,
guaranteeing the obligations of the Borrowers hereunder and (ii) concurrently with the delivery of
such supplement, to deliver to the Administrative Agent (x) evidence of action of such Person’s
board of directors or other governing body authorizing the execution, delivery and performance
thereof and (y) a favorable written opinion of counsel for such Person, in form and substance
reasonably satisfactory to the Administrative Agent and covering such matters relating to such
Person and the Subsidiary Guarantee Agreement as the Administrative Agent may reasonably request.



(b) The Company and each Person required to be a Subsidiary Guarantor shall pledge to the
Collateral Agent, under and pursuant to the Foreign Subsidiary Pledge Agreement and the Collateral
Sharing Agreement, 65% of their respective Equity Interests in each Foreign Subsidiary directly
owned by the Company or any such Person required to be a Subsidiary Guarantor. The Company shall
deliver (and shall cause each applicable Person required to be Subsidiary Guarantor to deliver) all
agreements, documents, instruments and opinion letters reasonably requested by the Administrative
Agent or the Collateral Agent to give effect to, evidence, or otherwise support each such pledge.
Such pledges shall be made in accordance with the Foreign Subsidiary Pledge Agreement. For each
Foreign Subsidiary acquired or formed by the Company or a Person required to be a Subsidiary
Guarantor after the Effective Date, the Company shall cause the pledge of 65% of the Equity
Interests of such Foreign Subsidiary within 30 days (or such later date as may be agreed to by the
Administrative Agent in its sole discretion) after the date such Foreign Subsidiary is acquired or
formed. With respect to any Foreign Borrower that is directly owned by the Company or a Domestic
Subsidiary (or if such Foreign Borrower is not so directly owned, then the parent of such Foreign
Borrower that is owned by the Company or such Domestic Subsidiary (and if such Person has multiple
parents, a pledge of the first-tier Foreign Subsidiary parent)), the pledge of such Person’s Equity
Interests shall also be subject to pledge documentation, in form and substance reasonably
acceptable to the Administrative Agent, governed by the laws of the jurisdiction in which such
Person is organized, and the US parent granting such pledge shall become subject to the


 


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Subsidiary
Guarantee Agreement to the extent not already a party thereto. Such
pledge documentation shall be delivered to the Administrative Agent within 90 days (or such later date as approved by the
Administrative Agent in its sole discretion) after the applicable Person becomes a Borrower
hereunder. The Lenders, the Administrative Agent and the Borrowers agree (i) that if the Equity
Interests of a Foreign Subsidiary are sold, transferred or assigned as permitted by the terms of
this Agreement, (ii) such Equity Interests are no longer required to be pledged to the Collateral
Agent subsequent to giving effect to such sale, transfer or assignment, and (iii) such Equity
Interests previously had been pledged to secure the Obligations, then such Equity Interests shall
be automatically released from such pledge for purposes of the Loan Documents upon the consummation
of such permitted sale, transfer or assignment; provided, that the Borrowers agree and
acknowledge that this automatic partial release shall only apply to the Administrative Agent, the
Lenders and the Collateral Agent to the extent acting on their behalf, and does not apply to any
other “Creditor” under and as defined in the Collateral Sharing Agreement, with the understanding
that any such automatic partial release offered by such “Creditor” shall be evidenced under its
“Creditor Documents” as defined in the Collateral Sharing Agreement. Notwithstanding the foregoing
or anything to the contrary in any Loan Document, none of the Equity Interests of Pt A. Schulman
Plastics, an Indonesian Affiliate of the Company, shall be required to be pledged to the Collateral
Agent until such time as the Company or a Subsidiary Guarantor (or any combination thereof) owns
all of the Equity Interests of Pt A. Schulman Plastics. Upon acquiring all of such Equity
Interests of Pt A. Schulman Plastics, the Company shall have 30 days during which to cause the
pledge thereof in accordance with the requirements hereof and of the Foreign Subsidiary Pledge
Agreement.



ARTICLE VI




Negative Covenants




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



SECTION 6.01. Indebtedness. The Company will not, and will not permit any Subsidiary to, create, incur, assume or
permit to exist any Indebtedness, except:



(a) Indebtedness created hereunder;



(b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and any extension,
renewal or refinancing thereof so long as the aggregate principal amount thereof does not increase
above the amount in effect on the date hereof;



(c) Indebtedness owing by (x) a Loan Party to the Company, and (y) a Subsidiary that is not a
Loan Party to the Company (where the proceeds of the loan giving rise to such Indebtedness result
from and correspond with a Restricted Payment received by the Company from such Subsidiary that is
not a Loan Party) or another Subsidiary that is not a Loan Party;


 


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(d) Indebtedness owing by (i) a Loan Party or a Foreign Subsidiary whose Equity Interests have
been pledged to the Collateral Agent in accordance with the terms of this Agreement to another Loan
Party or another Foreign Subsidiary whose Equity Interests have been pledged to the Collateral
Agent in accordance with the terms of this Agreement, (ii) a Loan Party to a Subsidiary that is not
a Loan Party, (iii) a Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan
Party, and (iv) subject to compliance with the Total Assets Limitation, any Subsidiary that is not
a Loan Party to a Loan Party;



(e) Guarantees by (i) a Loan Party of Indebtedness owing by another Loan Party or a Foreign
Subsidiary whose Equity Interests have been pledged to the Collateral Agent in accordance with the
terms of this Agreement, (ii) a Subsidiary that is not a Loan Party of Indebtedness owing by a Loan
Party or any Subsidiary that is not a Loan Party, and (iii) subject to compliance with the Total
Assets Limitation, a Loan Party of Indebtedness owing by any Subsidiary that is not a Loan Party;



(f) Indebtedness of the Company or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease Obligations and
any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien
on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount thereof;
provided that (i) such Indebtedness is incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement and (ii) the aggregate principal
amount of Indebtedness permitted by this clause shall not exceed $50,000,000 at any time
outstanding;



(g) Indebtedness in respect of the Senior Notes so long as (i) the terms and conditions set
forth in the Senior Notes and the Senior Note Purchase Agreement are reasonably acceptable to the
Administrative Agent and (ii) such Indebtedness and the holders thereof become and remain subject
to the terms and conditions of the Collateral Sharing Agreement;



(h) Indebtedness in respect of Other Senior Indebtedness so long as (i) the terms and
conditions set forth in the agreements, documents and instruments evidencing such Other Senior
Indebtedness are reasonably acceptable to the Administrative Agent and (ii) such Other Senior
Indebtedness and the holders thereof become and remain subject to the terms and conditions of the
Collateral Sharing Agreement;



(i) Indebtedness of the Company or any Subsidiary incurred pursuant to Permitted Receivables
Facilities; provided that the Attributable Receivables Indebtedness thereunder shall not
exceed an aggregate amount of $100,000,000 at any time outstanding;



(j) Indebtedness of an Acquired Entity existing at the time of the related Permitted
Acquisition which was not incurred in contemplation of such Permitted Acquisition, so long as, a
determined on a pro forma basis prior to such Acquired Entity becoming a Subsidiary of the Company,
the addition of such Indebtedness to the consolidated Indebtedness of the Company and its
Subsidiaries does not cause an Event of Default under Section 6.09 or any other term or provision
of this Agreement;


 


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(k) the Brazilian Indebtedness;



(l) the Indian Indebtedness; and



(m) other Indebtedness not described above incurred by the Company or any Subsidiary thereof;
provided, however, that no such Indebtedness shall be incurred if an Event of
Default is then outstanding or would result therefrom or if the Company and its Subsidiaries are
unable, on a pro forma basis, to demonstrate compliance with the financial covenants set forth in
Section 6.09; provided, further, that the aggregate outstanding principal amount of
Indebtedness owing by Subsidiaries that are not Loan Parties (or for which such Subsidiaries are
otherwise liable) in reliance upon this clause shall not exceed the Non-Loan Party Debt Limit.



SECTION 6.02. Liens. The Company will not, and will not permit any Subsidiary to, create, incur, assume or
permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in respect of any thereof,
except:



(a) Permitted Encumbrances;



(b) any Lien on any property or asset of the Company or any Subsidiary existing on the date
hereof and set forth in Schedule 6.02 and any extension, renewal or refinancing thereof so long as
the obligation secured by such Lien does not exceed the amount of the initial obligation in effect
on the date hereof; provided that (i) such Lien shall not apply to any other property or
asset of the Company or any Subsidiary and (ii) such Lien shall secure only those obligations which
it secures on the date hereof;



(c) any Lien existing on any property or asset prior to the acquisition thereof by the Company
or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary
after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such
Lien is not created in contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or
assets of the Company or any Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as
the case may be;



(d) Liens on fixed or capital assets acquired, constructed or improved by the Company or any
Subsidiary and Liens on receivables resulting from the subsequent sale of such fixed or capital
assets; provided that (i) such security interests secure Indebtedness permitted by clause
(f) of Section 6.01, (ii) such security interests and the Indebtedness secured thereby are incurred
prior to or within 180 days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such security interests shall not
apply to any other property or assets of the Company or any Subsidiary;



(e) Liens securing Indebtedness evidenced by the Senior Notes so long as such Indebtedness is
permitted under Section 6.01 and the holders thereof remain subject to the terms and conditions of
the Collateral Sharing Agreement;


 


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(f) Liens securing Other Senior Indebtedness so long as such Other Senior Indebtedness is
permitted under Section 6.01 and the holders thereof remain subject to the terms and conditions of
the Collateral Sharing Agreement;



(g) Liens in connection with or to secure Indebtedness permitted under Section 6.01 that arise
under Permitted Receivables Facilities;



(h) Liens securing the Brazilian Indebtedness that are granted by Subsidiaries organized under
the laws of Brazil;



(i) Liens securing the Indian Indebtedness that are granted by Subsidiaries organized under
the laws of India;



(j) Liens securing obligations and liabilities of the Company or any Subsidiary thereof in
respect of bank deposit accounts, cash sweep agreements, cash management services or cash pooling
arrangements (which each of the foregoing being within the general parameters customary in the
banking industry or arising pursuant to the applicable banking institution’s general terms and
conditions); and



(k) Liens securing Indebtedness not described above so long as the aggregate principal amount
thereof is not in excess of $30,000,000 at any time.



SECTION 6.03. Fundamental Changes. The Company will not, and will not permit any Subsidiary to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise make any disposition of its property or the Equity Interests of any of
its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve,
except that:




(i) the Company and its Subsidiaries may purchase and sell inventory in the ordinary
course of business;




(ii) the Company and its Subsidiaries may enter into and consummate Permitted
Acquisitions;




(iii) (A) any Person may merge into (1) the Company in a transaction where the Company
is the survivor thereof, and (2) any other Loan Party where such Loan Party is the survivor
thereof, and (B) any Person that is not required to be a Subsidiary Guarantor may merge into
any other Person that is not required to be a Subsidiary Guarantor; provided, that
if such Person is a Foreign Subsidiary whose Equity Interests are required to be pledged
hereunder, such merger shall not terminate or nullify such pledge;




(iv) any Loan Party may sell or transfer assets to any other Loan Party, and any
Subsidiary that is not a Loan Party may sell or transfer assets to any Loan Party or any
Subsidiary that is not a Loan Party;


 


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(v) a Foreign Borrower, Subsidiary Guarantor, or Foreign Subsidiary whose Equity
Interests have been pledged to secure the Obligations may be (A) merged or
consolidated with another Subsidiary, (B) dissolved or liquidated, or (C) subject to a
sale, transfer, assignment or disposition of its Equity Interests to another Subsidiary, so
long as, in each case, the Administrative Agent has provided its prior written consent to
the applicable action, and such action is not adverse to the Lenders (with the understanding
that no Foreign Borrower shall be subject to any merger or consolidation where it is not the
survivor thereof, and shall not liquidate or dissolve, unless in each case all of the
Obligations of such Foreign Borrower have been fully repaid and such Foreign Borrower no
longer constitutes a Foreign Borrower hereunder, or such Foreign Borrower’s duties and
obligations hereunder (including, without limitation, the payment of its Obligations) have
been assumed and accepted by another Subsidiary on terms and conditions acceptable to the
Administrative Agent); provided, that a Foreign Subsidiary that is not a Foreign
Borrower may merge or consolidate with another Foreign Subsidiary that is not a Foreign
Borrower, without the Administrative Agent’s prior written consent, so long as the Equity
Interests of the Foreign Subsidiary that survives such merger or consolidation have been
pledged to secure the Obligations, or the Equity Interests of such Foreign Subsidiary’s
ultimate parent have been so pledged; provided, further, that a Foreign
Borrower’s Equity Interests may be sold or transferred to the Company or a Subsidiary
thereof so long as the Equity Interests thereof have been pledged to the Collateral Agent in
accordance with Section 5.09 (including the limitation on the percentage of Equity Interests
so pledged) or, if such Foreign Borrower has multiple parents in-between it and its US
parent, so long as a pledge of the first-tier Foreign Subsidiary parent has been made in
accordance with Section 5.09 (including the limitation on the percentage of Equity Interests
so pledged);




(vi) the Company or any Subsidiary may sell Receivables under Permitted Receivables
Facilities (subject to the limitation that the Attributable Receivables Indebtedness
thereunder shall not exceed an aggregate amount of $100,000,000);




(vii) if at the time thereof and immediately after giving effect thereto no Event of
Default shall have occurred and be continuing, any Subsidiary that is not a Borrower may
liquidate or dissolve if the Company determines in good faith that such liquidation or
dissolution is in the best interests of the Company and is not materially disadvantageous to
the Lenders; provided that any such merger involving a Person that is not a wholly
owned Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.04;




(viii) the Company and its Subsidiaries may sell, transfer or otherwise dispose of
excess, damaged, obsolete or worn out assets and scrap in the ordinary course of business;
and




(ix) the Company or any Subsidiary may engage in a sale or transfer of any asset not
described above so long as the consideration received for such asset, when taken together
with the consideration received for all other assets sold or transferred pursuant to this
clause in any fiscal year, does not exceed 15% of the Total Asset Test Amount then in
effect.


 


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In addition to the foregoing, the Company will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any business if as a result thereof the general nature of the
business of the Company and its Subsidiaries taken as a whole would be substantially changed from
the general nature of the business of the Company and its Subsidiaries on the Effective Date.



SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or
acquire (including pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger) any capital stock, evidences of indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business unit, except:




(A) Permitted Acquisitions;




(B) Permitted Investments;




(C) investments by the Company in the capital stock of its Subsidiaries;




(D) loans or advances made by (i) a Loan Party to any other Loan Party or to a
Foreign Subsidiary whose Equity Interests have been pledged to the Collateral Agent
in accordance with the terms of this Agreement or (ii) any Subsidiary that is not a
Loan Party to a Loan Party or any other Subsidiary that is not a Loan Party;




(E) Guarantees constituting Indebtedness permitted by Section 6.01; and




(F) any loan, advance, Guarantee, investment, purchase or acquisition not
described in the foregoing clauses (A) through (E) so long as the Company and its
Subsidiaries are in compliance with the Total Assets Limitation immediately prior to
and subsequent to the consummation of such loan, advance, Guarantee, investment,
purchase or acquisition.



SECTION 6.05. Swap Agreements. The Company will not, and will not permit any of its Subsidiaries to, enter into any Swap
Agreement, except (a) Swap Agreements entered into for non-speculative purposes (including, without
limitation, those entered into to limit exposure to changes in commodity prices, but excluding
those in respect of Equity Interests of the Company or any of its Subsidiaries), and (b) Swap
Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed
to floating rates, from one floating rate to another floating rate or otherwise) with respect to
any interest-bearing liability or investment of the Company or any Subsidiary, currency rates or
changes in commodities prices.


 


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SECTION 6.06. Restricted Payments. At any time before or after giving effect to any Restricted Payment the Net Debt Leverage
Ratio is less than or equal to 2.75 to 1.00, the
Company and its Subsidiaries may make such Restricted Payment. At any time before or after
giving effect to any Restricted Payment the Net Debt Leverage Ratio is greater than 2.75 to 1.00,
the Company will not, and will not permit any of its Subsidiaries to declare or make, or agree to
pay or make, directly or indirectly, any Restricted Payment during any fiscal year of the Company
if the amount of such Restricted Payment, when taken together with all other Restricted Payments
made during such fiscal year, would exceed 15% of Total Assets as in effect as of the last day of
the immediately preceding fiscal year. Notwithstanding the foregoing, the Company will not, and
will not permit any of its Subsidiaries to declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment if any Default or Event of Default has occurred and is
continuing prior to making any such Restricted Payment or would arise after giving effect thereto.



SECTION 6.07. Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except
(a) in the ordinary course of business at prices and on terms and conditions not less favorable to
the Company or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties, (b) transactions between or among the Company and its Subsidiaries not involving any other
Affiliate and (c) any Restricted Payment permitted by Section 6.06.



SECTION 6.08. Restrictive Agreements. The Company will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Company or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Company or any other Subsidiary or to Guarantee
Indebtedness of the Company or any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by this Agreement, (ii) the foregoing shall
not apply to restrictions and conditions existing on the date hereof identified on Schedule 6.08
(but shall apply to any extension or renewal of, or any amendment or modification expanding the
scope of, any such restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be
sold and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply (1) to
restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by
this Agreement if such restrictions or conditions apply only to the property or assets securing
such Indebtedness and (2) to the Senior Notes, the Senior Note Purchase Agreement and the
agreements, documents and instruments evidencing Other Senior Indebtedness so long as the foregoing
permit the Lien granted under the Foreign Subsidiary Pledge Agreement (and all local law pledges)
to secure the Obligations, and Liens securing the Senior Notes, the Senior Note Purchase Agreement
and all Other Senior Indebtedness are subject to the Collateral Sharing Agreement, (v) the
foregoing shall not apply to customary restrictions and conditions contained in agreements relating
to a Permitted Receivables Facility or the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, and (vi) clause (a) of the foregoing shall not apply to customary
provisions in leases and other contracts restricting the assignment thereof.


 


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SECTION 6.09. Financial Covenants.



(a) Minimum Interest Coverage Ratio. The Company will not permit the Interest
Coverage Ratio to be less than 3.00 to 1.00 at any time.



(b) Maximum Net Debt Leverage Ratio. The Company will not permit the Net Debt
Leverage Ratio to be greater than 3.25 to 1.00 at any time.



ARTICLE VII




Events of Default




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



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



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



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



(d) any Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to any Borrower’s existence) or 5.08 or in Article
VI;



(e) any Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement or in any other Loan Document (other than those specified in clause
(a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30
days after notice thereof from the Administrative Agent to the Company (which notice will be given
at the request of any Lender);



(f) any Loan Party or any Significant Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness, when and
as the same shall become due and payable;


 


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(g) any event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such Indebtedness so
long as such Indebtedness is prepaid with the proceeds resulting from such sale or transfer;



(h) an involuntary proceeding shall be commenced, an involuntary petition shall be filed or
any other corporate action, procedure or step is taken seeking (i) bankruptcy, winding up,
dissolution, liquidation, administration, moratorium, reorganization or other relief in respect of
any Loan Party or any Significant Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, administrative, receivership or similar
law now or hereafter in effect or (ii) the appointment of a receiver, receiver and manager,
administrator, administrative receiver, trustee, custodian, sequestrator, conservator, controller
or similar official for any Loan Party or any Significant Subsidiary or for a substantial part of
its assets, and, in any such case, such proceeding or petition shall continue undismissed or
unwithdrawn for 60 days or an order or decree approving or ordering any of the foregoing shall be
entered;



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



(j) any Loan Party or any Significant Subsidiary shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;



(k) one or more judgments for the payment of money in an aggregate amount in excess of
$25,000,000 (to the extent not covered by insurance) shall be rendered against any Loan Party, any
Significant Subsidiary or any combination thereof and the same shall remain undischarged for a
period of 30 consecutive days during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon any assets of any Loan Party
or any Significant Subsidiary to enforce any such judgment;


 


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(l) an ERISA Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, would reasonably be expected to result in a Material Adverse Effect;



(m) a Change in Control shall occur;



(n) the Company’s guarantee under Article X or the Subsidiary Guarantee Agreement shall not
be, or shall be asserted by the Company or any Subsidiary Guarantor, as applicable, not to be,
valid and in full force and effect;



(o) the Collateral Agent shall fail to have a first priority perfected security interest in
certain of Foreign Subsidiaries’ Equity Interests as required by the terms hereof, the terms of the
Foreign Subsidiary Pledge Agreement, or the terms of any local-law governed pledge documents; or



(p) any annual financials delivered pursuant to Section 5.01(a) shall be delivered with a
“going concern” or like qualification or exception.



then, and in every such event (other than an event with respect to a Loan Party or Significant
Subsidiary described in clause (h) or (i) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Company, take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any such principal or face amount not so declared to be due and payable or
required to be prepaid may thereafter be declared to be due and payable or required to be prepaid),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to a
Loan Party or Significant Subsidiary described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then outstanding, together
with accrued interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers.



ARTICLE VIII




The Agents




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



Each bank serving as an 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 such Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or other Affiliate
thereof as if it were not an Agent hereunder.


 


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The Agents shall not have any duties or obligations except those expressly set forth herein.
Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent
shall have any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that such Agent is required to
exercise in writing as directed by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 11.02), and (c) except
as expressly set forth herein, no Agent shall have any duty to disclose, or shall be liable for the
failure to disclose, any information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as such Agent or any of its Affiliates in any
capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at
the request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 11.02) or in the absence of its own gross
negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless
and until written notice thereof is given to such Agent by a Borrower or a Lender, and no Agent
shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, (v) 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 such Agent or (vi) the perfection or priority of any Lien securing the Obligations.



Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also
may rely upon any statement made to it orally, by telephone or by e-mail and believed by it to be
made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may
consult with legal counsel (who may be counsel for any Borrower), 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.



Each Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each 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 an Agent.


 


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Subject to the appointment and acceptance of a successor Agent as provided in this paragraph,
any Agent may resign at any time by notifying the Lenders, the Issuing Banks (in the case of the
Administrative Agent) and the Company; provided, that the resignation of one Global Agent shall be
deemed to be the resignation of all Global Agents. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Company, to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent
may, on behalf of the Lenders and the Issuing Banks (in the case of a successor Administrative
Agent), appoint a successor Agent, which, in the case of the Administrative Agent shall be a bank
with an office in New York, New York, or an Affiliate of any such bank; and in the case of the
Global Agents, shall be a bank with an office in London, England, New York, New York, Kuala Lumpur,
Malaysia, and Sydney, Australia, or an Affiliate of any such bank. The appointment of successor
Global Agents shall be subject to the consent of the Administrative Agent (such consent not to be
unreasonably withheld). Upon the acceptance of its appointment as an Agent hereunder by a
successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. The fees payable by any Borrower to a successor Agent shall be
the same as those payable to its predecessor unless otherwise agreed between such Borrower and such
successor. After an Agent’s resignation hereunder, the provisions of this Article and Section
11.03 shall continue in effect for the benefit of such retiring 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 it was acting as an Agent.



Each Lender acknowledges that it has, independently and without reliance upon any 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 Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any related agreement
or any document furnished hereunder or thereunder.



Each Lender authorizes the Collateral Agent to enter into the Foreign Subsidiary Pledge
Agreement and to take all action contemplated thereby. Each Lender agrees that no one (other than
the Administrative Agent or the Collateral Agent) shall have the right individually to seek to
realize upon the security granted by the Foreign Subsidiary Pledge Agreement, it being understood
and agreed that such rights and remedies may be exercised solely by the Administrative Agent or the
Collateral Agent for the benefit of the Lenders upon the terms of the Foreign Subsidiary Pledge
Agreement. In the event that any collateral is hereafter pledged by any Person as collateral
security for the Obligations, each of the Administrative Agent and the Collateral Agent is hereby
authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Lenders
any Loan Documents necessary or appropriate to grant and perfect a Lien on such collateral in favor
of the Administrative Agent or the Collateral Agent on behalf of the Lenders. The Lenders hereby
authorize the Administrative Agent, at its option and in its discretion, to permit the release of
any Lien granted to or held by the Administrative Agent or the Collateral Agent upon any collateral
(i) upon termination of the Commitments, the expiration or termination of all Letters of Credit and
payments and satisfaction of all of the Obligations (other than contingent indemnity obligations)
at any time arising under or in respect
of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby;
(ii) as permitted by, but only in accordance with, the terms of the applicable Loan Documents; or
(iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release
is required to be approved by all of the Lenders hereunder. Upon request by the Administrative
Agent or the Collateral Agent at any time, the Lenders will confirm in writing the Administrative
Agent’s or the Collateral Agent’s authority to release particular types or items of collateral
pursuant hereto.


 


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Each Lender hereby authorizes the Administrative Agent to enter into the Collateral Sharing
Agreement and to take all actions with respect to such agreement as contemplated hereunder or
thereunder.



None of the Lenders, if any, identified in this Agreement as a Syndication Agent or
Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as such. Without limiting the
foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in
their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it
makes with respect to the Administrative Agent in the preceding paragraph.



The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right
on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after
the date such principal or interest has become due and payable pursuant to the terms of this
Agreement.



The Borrowers acknowledge and agree that none of the Agents (other than an Agent which is a
Licensed Malaysian Bank) is licensed to carry on banking business, merchant banking business or any
other regulated activity in Malaysia, and each of such Agents (other than an Agent which is a
Licensed Malaysian Bank) intends to perform its functions pursuant to this Agreement solely from
jurisdictions other than Malaysia. Nothing contained in this Agreement shall be deemed to suggest
that any Agent (other than an Agent which is a Licensed Malaysian Bank) will undertake any act or
thing in Malaysia which would or may constitute the carrying on of business or of any regulated
activity in Malaysia.



ARTICLE IX




Collection Allocation Mechanism




SECTION 9.01. Implementation of CAM. (a) On the CAM Exchange Date, (i) the Commitments shall automatically and without further
act be terminated as provided in Article VII, (ii) each US Tranche Lender shall immediately be
deemed to have acquired (and shall promptly make payment therefor to the Administrative Agent in
accordance with Section 2.04(c)) participations in the Swingline Loans under the US Tranche in an
amount equal to such Lender’s US Tranche Percentage of each such Swingline Loan outstanding on such
date, (iii)
each Foreign Tranche Lender shall immediately be deemed to have acquired (and shall promptly
make

 


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payment therefor to the applicable Agent in accordance with Section 2.04(c)) participations in
the Swingline Loans under the Foreign Tranche in an amount equal to such Lender’s Foreign Tranche
Percentage of each such Swingline Loan outstanding on such date, (iv) [Intentionally Omitted], (v)
simultaneously with the automatic conversions pursuant to clause (vi) below (after giving effect to
clauses (ii), (iii) and (iv) above), the US Tranche Lenders and the Foreign Tranche Lenders shall
automatically and without further act (and without regard to the provisions of Section 11.04) be
deemed to have exchanged interests in the US Tranche Loans and the Foreign Tranche Loans (other
than the Swingline Loans under such Tranches) and participations in Swingline Loans and Letters of
Credit under the US Tranche and the Foreign Tranche, such that in lieu of the interest of each US
Tranche Lender and Foreign Tranche Lender in each US Tranche Loan, Foreign Tranche Loan, US Tranche
Letter of Credit and Foreign Tranche Letter of Credit in which it shall participate as of such date
(including such Lender’s interest in the Obligations of each applicable Borrower in respect of each
such US Tranche Loan, Foreign Tranche Loan, US Tranche Letter of Credit and Foreign Tranche Letter
of Credit), each such US Tranche Lender and Foreign Lender shall hold an interest in every one of
the US Tranche Loans and Foreign Tranche Loans (other than the Swingline Loans under such Tranches)
and a participation in every one of the US Tranche Swingline Loans and the Foreign Tranche
Swingline Loans and US Tranche Letters of Credit and Foreign Tranche Letters of Credit (including
the Obligations of each Borrower in respect of each such US Tranche Loan and Foreign Tranche Loan,
and each Reserve Account established pursuant to Section 9.02 below), whether or not such Lender
shall previously have participated therein, equal to such US Tranche Lender’s and Foreign Tranche
Lender’s CAM Percentage thereof, and (vi) simultaneously with the deemed exchange of interests
pursuant to clause (v) above, the interests in the Loans to be received in such deemed exchange
shall, automatically and with no further action required, be converted into the US Dollar
Equivalent, determined using the Exchange Rate calculated as of such date, of such amount and on
and after such date all amounts accruing and owed to the Lenders in respect of such Obligations
shall accrue and be payable in US Dollars at the rate otherwise applicable hereunder. Each US
Tranche Lender, Foreign Tranche Lender and each Borrower hereby consents and agrees to the CAM
Exchange, and each US Tranche Lender and Foreign Tranche 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 US Tranche Loan or Foreign Tranche Loan or any participation in any Swingline Loan
or Letter of Credit under either such Tranche. The Malaysian Tranche Borrower, the Malaysian
Tranche Lenders, and the Obligations under the Malaysian Tranche (including, without limitation,
all Loans, Letters of Credit thereunder) shall not be subject to any CAM Exchange, and on and after
the occurrence of a CAM Exchange Date, the Malaysian Tranche Obligations shall remain among the
Malaysian Borrower and the Malaysian Tranche Lenders. Only Malaysian Tranche Lenders shall hold
Obligations under the Malaysian Tranche. Each Borrower under the US Tranche and the Foreign Tranche
and each Lender under the US Tranche and the Foreign Tranche agrees from time to time to execute
and deliver to the Administrative Agent all such promissory notes and other instruments and
documents as the Administrative Agent shall reasonably request to evidence and confirm the
respective interests and obligations of the applicable Lenders after giving effect to the CAM
Exchange, and each such Lender agrees to surrender any promissory notes originally received by it
in connection with its applicable Loans hereunder to the Administrative Agent against delivery of
any promissory notes evidencing its interests in the applicable Loans so
executed and delivered; provided, however, that the failure of any Borrower to execute or
deliver or of any Lender to accept any such promissory note, instrument or document shall not
affect the validity or effectiveness of the CAM Exchange.


 


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(b) As a result of the CAM Exchange, upon and after the CAM Exchange Date, each payment
received by the Administrative Agent or relevant Global Agent pursuant to any Loan Document in
respect of the Obligations under the US Tranche or the Foreign Tranche, and each distribution made
by the Administrative Agent or relevant Global Agent pursuant to any Loan Document in respect of
the Obligations under the US Tranche or the Foreign Tranche, shall be distributed to the Lenders
under such Tranches pro rata in accordance with their respective CAM Percentages. No Lender under
the Malaysian Tranche shall be entitled to any such payments. Any direct payment received by a
Lender under the US Tranche or the Foreign Tranche on or after the CAM Exchange Date, including by
way of set-off, in respect of an Obligation under either such Tranche shall be paid over to the
Administrative Agent or relevant Global Agent for distribution to the Lenders under such Tranches
in accordance herewith. Payments in respect of Malaysian Tranche Obligations shall be paid to the
Malaysian Tranche Lenders.



SECTION 9.02. Letters of Credit. (a) In the event that on the CAM Exchange Date any Letter of Credit under the US Tranche
or the Foreign Tranche shall be outstanding and undrawn in whole or in part, or any L/C
Disbursement shall not have been reimbursed by the Company or with the proceeds of a Revolving
Borrowing or Swingline Borrowing under such Tranche, each Lender under such Tranche shall promptly
pay over to the Administrative Agent or relevant Global Agent, in immediately available funds, an
amount in US Dollars equal to such Lender’s CAM Percentage of such undrawn face amount or (to the
extent it has not already done so) such unreimbursed drawing, as applicable, together with interest
thereon from the CAM Exchange Date to the date on which such amount shall be paid to the
Administrative Agent at the rate that would be applicable at the time to a US Tranche ABR Revolving
Loan in a principal amount equal to such undrawn face amount or unreimbursed drawing, as
applicable. The Administrative Agent or relevant Global Agent shall establish a separate account
(each, a “Reserve Account”) or accounts for each applicable Lender for the amounts received
with respect to each such Letter of Credit pursuant to the preceding sentence. The Administrative
Agent or relevant Global Agent, as applicable shall deposit in each Lender’s Reserve Account such
Lender’s CAM Percentage of the amounts received from the applicable Lenders as provided above. For
the purposes of this paragraph, the US Dollar Equivalent of each Lender’s participation in each
Letter of Credit denominated in an Alternative Currency shall be the amount in US Dollars
determined by the Administrative Agent to be required in order for the Administrative Agent or
relevant Global Agent to purchase currency in the applicable Alternative Currency in an amount
sufficient to enable it to deposit the actual amount of such participation in such undrawn Letter
of Credit in the applicable Alternative Currency in such Lender’s Reserve Account. The
Administrative Agent or relevant Global Agent shall have sole dominion and control over each
Reserve Account, and the amounts deposited in each Reserve Account shall be held in such Reserve
Account until withdrawn as provided in paragraph (b), (c), (d) or (e) below. The Administrative
Agent shall maintain records enabling it to determine the amounts paid over to it or the relevant
Global Agent and deposited in the Reserve Accounts in respect of each Letter of Credit and the
amounts on deposit in respect of each Letter of Credit attributable to each Lender’s CAM
Percentage. The amounts held in each Lender’s Reserve
Account shall be held as a reserve against the LC Exposures, shall be the property of such
Lender, shall not constitute Loans to or give rise to any claim of or against any Borrower and
shall not give rise to any obligation on the part of any Borrower to pay interest to such Lender,
it being agreed that the reimbursement obligations in respect of Letters of Credit shall arise only
at such times as drawings are made thereunder, as provided in Section 2.05.


 


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(b) In the event that after the CAM Exchange Date any drawing shall be made in respect of a
Letter of Credit under the US Tranche or the Foreign Tranche, the Administrative Agent shall, at
the request of the applicable Issuing Bank, withdraw from the Reserve Account of each Lender under
such Tranche any amounts, up to the amount of such Lender’s CAM Percentage of such drawing or
payment, deposited in respect of such Letter of Credit and remaining on deposit and deliver such
amounts to such Issuing Bank in satisfaction of the reimbursement obligations of the Lenders under
such Tranche under Section 2.05(d) (but not of the Company under Section 2.05(e)). In the event
that any Lender shall default on its obligation to pay over any amount to the Administrative Agent
or relevant Global Agent as provided in this Section 9.02, the applicable Issuing Bank shall have a
claim against such Lender to the same extent as if such Lender had defaulted on its obligations
under Section 2.05(d), but shall have no claim against any other Lender in respect of such
defaulted amount, notwithstanding the exchange of interests in the Company’s reimbursement
obligations pursuant to Section 9.01. Each other Lender shall have a claim against such defaulting
Lender for any damages sustained by it as a result of such default, including, in the event that
such Letter of Credit shall expire undrawn, its CAM Percentage of the defaulted amount.



(c) In the event that after the CAM Exchange Date any Letter of Credit shall expire undrawn,
the Administrative Agent or relevant Global Agent shall withdraw from the Reserve Account of each
Lender the amount remaining on deposit therein in respect of such Letter of Credit and distribute
such amount to such Lender.



(d) With the prior written approval of the Administrative Agent (not to be unreasonably
withheld), any Lender may withdraw the amount held in its Reserve Account in respect of the undrawn
amount of any Letter of Credit. Any Lender making such a withdrawal shall be unconditionally
obligated, in the event there shall subsequently be a drawing under such Letter of Credit, to pay
over to the Administrative Agent or relevant Global Agent, in the currency in which such drawing is
denominated, for the account of the applicable Issuing Bank, on demand, its CAM Percentage of such
drawing or payment.



(e) Pending the withdrawal by any Lender of any amounts from its Reserve Account as
contemplated by the above paragraphs, the Administrative Agent or relevant Global Agent will, at
the direction of such Lender and subject to such rules as the Administrative Agent or relevant
Global Agent may prescribe for the avoidance of inconvenience, invest such amounts in customary,
highly-rated, short-term investments reasonably acceptable to the Administrative Agent. Each
Lender that has not withdrawn its amounts in its Reserve Account as provided in paragraph (d) above
shall have the right, at intervals reasonably specified by the Administrative Agent or relevant
Global Agent, to withdraw the earnings on investments so made by the Administrative Agent or
relevant Global Agent with amounts in its Reserve Account and to retain such earnings for its own
account.


 


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(f) Notwithstanding the foregoing or anything else to the contrary set forth in this Agreement
or any other Loan Document, to the extent the Borrowers have cash collateralized LC Exposure in
respect of outstanding Letters of Credit within five (5) Business Days after the date such cash
collateralization is required under the terms of this Agreement (including, without limitation,
Section 2.05(j)), no Lender shall be required to deposit any amount in a Reserve Account or
otherwise post any amount in respect of outstanding Letters of Credit as contemplated by this
Section 9.02. In the event any LC Exposure is not cash collateralized as required under this
Agreement and the Borrowers do not post required cash collateral within 5 Business Days after the
date on which such cash collateral was required to be posted, then the Lenders shall be required to
make deposits as and when contemplated in this Section 9.02 in the amount not secured by cash
collateral required to be posted under Section 2.05(j) or otherwise.



ARTICLE X




Guarantee




In order to induce the Lenders to extend credit to the other Borrowers hereunder, the Company
hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety,
the payment when and as due of the Obligations of such other Borrowers. The Company further agrees
that the due and punctual payment of such Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will remain bound upon its guarantee
hereunder notwithstanding any such extension or renewal of any such Obligation.



The Company waives presentment to, demand of payment from and protest to any Borrower of any
of the Obligations, and also waives notice of acceptance of its obligations and notice of protest
for nonpayment. The obligations of the Company hereunder shall not be affected by (a) the failure
of any Agent, Issuing Bank or Lender to assert any claim or demand or to enforce any right or
remedy against any Borrower under the provisions of this Agreement, any other Loan Document or
otherwise; (b) any extension or renewal of any of the Obligations; (c) any rescission, waiver,
amendment or modification of, or release from, any of the terms or provisions of this Agreement, or
any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise, in
the performance of any of the Obligations; or (e) any other act, omission or delay to do any other
act which may or might in any manner or to any extent vary the risk of the Company or otherwise
operate as a discharge of a guarantor as a matter of law or equity or which would impair or
eliminate any right of the Company to subrogation.



The Company further agrees that its agreement hereunder constitutes a guarantee of payment
when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or
collection of any of the Obligations or operated as a discharge thereof) and not merely of
collection, and waives any right to require that any resort be had by any Agent, Issuing Bank or
Lender to any balance of any deposit account or credit on the books of any Agent, Issuing Bank or
Lender in favor of any Borrower or any other Person.


 


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The obligations of the Company hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, and shall not be subject to any defense or
set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity,
illegality or unenforceability of any of the Obligations, any impossibility in the performance of
any of the Obligations or otherwise.



The Company further agrees that its obligations hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Agent, Issuing Bank or Lender upon the bankruptcy or
reorganization of any Borrower or otherwise.



In furtherance of the foregoing and not in limitation of any other right which any Agent,
Issuing Bank or Lender may have at law or in equity against the Company by virtue hereof, upon the
failure of any other Borrower to pay any Obligation when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment or otherwise, the Company hereby promises
to and will, upon receipt of written demand by any Agent, Issuing Bank or Lender, forthwith pay, or
cause to be paid, to the applicable Agent, Issuing Bank or Lender in cash an amount equal to the
unpaid principal amount of such Obligations then due, together with accrued and unpaid interest
thereon. The Company further agrees that if payment in respect of any Obligation shall be due in a
currency other than US Dollars and/or at a place of payment other than New York and if, by reason
of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance
or other event, payment of such Obligation in such currency or at such place of payment shall be
impossible or, in the reasonable judgment of any Agent, Issuing Bank or Lender, disadvantageous to
such Agent, Issuing Bank or Lender in any material respect, then, at the election of the
Administrative Agent, the Company shall make payment of such Obligation in US Dollars (based upon
the applicable Exchange Rate in effect on the date of payment) and/or in New York, and, as a
separate and independent obligation, shall indemnify each Agent, Issuing Bank and Lender against
any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such
alternative payment.



Upon payment by the Company of any sums as provided above, all rights of the Company against
any Borrower arising as a result thereof by way of right of subrogation or otherwise shall in all
respects be subordinated and junior in right of payment to the prior indefeasible payment in full
in cash of all the Obligations owed by such Borrower to the Agents, the Issuing Banks and the
Lenders.



Nothing shall discharge or satisfy the liability of the Company hereunder except the full
performance and payment of the Obligations.


 


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ARTICLE XI




Miscellaneous




SECTION 11.01. Notices. (a) Except in the case of notices and other communications expressly permitted to be given
by telephone or e-mail (and subject to paragraph (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 telecopy, as follows; provided,
that, subject to clause (b) below, the Company may deliver Borrowing Requests and
prepayment/repayment notices to the
Administrative Agent by e-mail pursuant to procedures agreed upon by the Company and the
Administrative Agent (with e-mails, on and after the Effective Date, to be sent to the
Administrative Agent care of margaret.m.seweryn@jpmchase.com or such other designee as the
Administrative Agent may select from time to time (with notice thereof to the Company)):




(i) if to any Borrower, to it c/o A. Schulman, Inc., 3550 West Market Street, Akron,
Ohio 44333, Attention: Chief Financial Officer;




(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, Mail Code: IL 1-0010, 10 S. Dearborn St., 19th Floor, Chicago, IL
60603, Attention of Margaret Seweryn (Telephone No. 312-732-7976/Telecopy No. 312-385-7098);



(iii) if to the Global Agents, to them as follows:




(A) for J. P. Morgan Europe Limited, Mail Code: London Wall/9, 125 London Wall,
Floor 9, London EC2Y5AJ, United Kingdom, Attention of Manager of Loan & Agency
Services (Telecopy No. 44 207 7772360) (in each case with a copy to the
Administrative Agent as provided in clause (ii) above); and




(B) for JPMorgan Chase Bank Berhad, Menara Dion, 26th Floor, Jalan
Sultan Ismail, 50250 Kuala Lumpur, Malaysia, Attention of: Goh Kee Boon (Telecopy
No. +603 2270 4134) (in each case with a copy to the Administrative Agent as
provided in clause (ii) above); provided, that all requests and other
deliverables in respect of the Malaysian Tranche shall also be sent to Kan Kong Fui
and Halmi Basir (Telecopy No. +603 2270 4219);




(iv) if to any Issuing Bank, to it at its address (or telecopy number) set forth in its
Issuing Bank Agreement;




(v) if to the US Tranche Swingline Lender, to it at to JPMorgan Chase Bank, N.A., Loan
and Agency Services Group, Mail Code: IL 1-0010, 10 S. Dearborn St., 19th Floor,
Chicago, IL 60603, Attention of Margaret Seweryn (Telephone No. 312-732-7976/Telecopy No.
312-385-7098);




(vi) if to the Foreign Tranche Swingline Lender, to it at JPMorgan Chase Bank, N.A.
London Branch, Mail Code: London Wall/9, 125 London Wall, Floor 9, London EC2Y5AJ, United
Kingdom, Attention of Manager of Loan & Agency Services (Telecopy No. 44 207 7772360) (in
each case with a copy to the Administrative Agent as provided in clause (ii) above) or to
such other location as indicated by the applicable Foreign Tranche Swingline Lender to the
Administrative Agent, the applicable Global Agent and the applicable Foreign Borrower;




(vii) if to any other Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire.


 


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(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Applicable Agent and the applicable Lender. Each Agent or the Company may,
in 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. Notwithstanding anything to the
contrary set forth herein, notices in respect of the Malaysian Tranche shall only be delivered in
writing, and email shall not be available for notices under the Malaysian Tranche.



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



SECTION 11.02. Waivers; Amendments. (a) No failure or delay by any Agent, any Issuing Bank or any Lender in exercising any
right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Agents, the
Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or consent to any departure by any Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter
of Credit shall not be construed as a waiver of any Default, regardless of whether any Agent, any
Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.



(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may
be waived, amended or modified except pursuant to an agreement or agreements in writing entered
into by the Borrowers and the Required Lenders or by the Borrowers and the Administrative Agent
with the consent of the Required Lenders or, in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or
Loan Parties that are parties thereto, in each case with the consent of the Required Lenders;
provided that no such agreement shall:



(i) increase any Commitment of any Lender without the written consent of such Lender,




(ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each
Lender affected thereby,


 


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(iii) postpone the date of any scheduled payment of the principal amount of any Loan or
LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of
any Commitment, without the written consent of each Lender directly affected thereby,




(iv) change Section 2.19(b) or (c) or any other provision providing for the pro rata
nature of disbursements by or payments to Lenders, in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender affected
thereby (it being understood that (X) any increase in the total US Tranche Revolving
Commitments, the Foreign Tranche Commitments or the Malaysian Tranche Commitments pursuant
to Section 2.09 shall not be deemed to alter such pro rata sharing of payments and (Y) any
“amend-and-extend” transaction that extends the Maturity Date only for those Lenders that
agree to such an extension (which extension may include increased pricing and fees for such
extending Lenders, and which extension shall not apply to those Lenders that do not approve
such extension) shall not be deemed to alter such pro rata sharing of payments),




(v) change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision of any Loan Document specifying the number or percentage of
Lenders required to waive, amend or modify any rights thereunder or make any determination
or grant any consent thereunder, without the written consent of each Lender,




(vi) release the Company or all or substantially all of the Subsidiary Guarantors from,
or limit or condition, its or their obligations under Article X or the Subsidiary Guarantee
Agreement without the written consent of each Lender,




(vii) unless otherwise permitted hereunder, release all or substantially all of the
Equity Interests pledged under the Foreign Subsidiary Pledge Agreement without the written
consent of each Lender,




(viii) change any provisions of Article IX without the written consent of each Lender,
or




(ix) change any provisions of any Loan Document in a manner that by its terms adversely
affects the rights in respect of payments due to Lenders holding Loans of any Tranche
differently than those of Lenders holding Loans of any other Tranche without the written
consent of Lenders holding a majority in interest of the outstanding Loans and unused
Commitments of each adversely affected Tranche;


 


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provided further that (A) no such agreement shall amend, modify or otherwise affect
the rights or duties of any Agent, any Issuing Bank or any Swingline Lender hereunder or under any
other Loan Document without the prior written consent of such Agent, such Issuing Bank or such
Swingline Lender, as the case may be, and (B) any waiver, amendment or modification of this
Agreement that by its terms affects the rights or duties under this Agreement of the US Tranche
Lenders (but not the Foreign Tranche Lenders or the Malaysian Tranche Lenders), the Foreign
Tranche Lenders (but not the US Tranche Lenders or the Malaysian Tranche Lenders), or the Malaysian
Tranche Lenders (but not the US Tranche Lenders or the Foreign Tranche Lenders) may be effected by
an agreement or agreements in writing entered into by the Company and requisite percentage in
interest of the affected Tranche of Lenders. Notwithstanding the foregoing, any amendment to this
Agreement solely for the purpose of effecting an increase in the total Commitments in any Tranche
pursuant to Section 2.09 may be entered into by the Company and any other relevant Borrower, the
Administrative Agent and any other Applicable Agent, any Lender that has agreed to increase its
Commitment in the relevant Tranche and any Person that has agreed to become a Lender hereunder and
to have a Commitment in the relevant Tranche.



SECTION 11.03. Expenses; Indemnity; Damage Waiver. (a) 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 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);
provided, that under this clause (i), the Company shall not be required to pay reasonable
costs, fees and expenses for more than one primary counsel for the Administrative Agent and one
local counsel for the Administrative Agent in each jurisdiction where local counsel is required by
the Administrative Agent unless one or more Lenders determines that the use of one primary
counsel could result in an actual or potential conflicts of interest, in which case the Company
shall also be required to pay reasonable costs, fees and expenses for one additional counsel for
the Lenders, (ii) all reasonable out-of-pocket expenses incurred by each Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out-of-pocket expenses incurred by any Agent, any Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for any Agent, any Issuing
Bank or any Lender, in connection with the enforcement or protection of its rights in connection
with any Loan Document, including its rights under this Section, or in connection with the 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;
provided, however, that in no event under this clause (iii) shall the Company be
required to reimburse the Lenders for more than one primary counsel to the Administrative Agent and
one local counsel per jurisdiction, and one counsel for all of the other Lenders, or any fees or
charges of any financial advisor or other restructuring professional in excess of reasonable fees
and charges charged or incurred by such financial advisor or other restructuring professional.



(b) The Company shall indemnify each Administrative Agent, each Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with, or as a result of (i) the execution or delivery of any Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties to the Loan Documents
of their respective obligations thereunder or the consummation of the Transactions or any other
transactions


 


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contemplated
thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank 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
release of Hazardous Materials on or from any property owned or operated by the Company or any of
its Subsidiaries, or any Environmental Liability arising out of the operations or properties of the
Company or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee. This Section 11.03(b) shall not apply with respect to Taxes other than any
Taxes that represent losses or damages arising from any non-Tax claim.



(c) To the extent that the Company fails to pay any amount required to be paid by it to any
Agent, any Issuing Bank or any Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to such Agent, such Issuing Bank or such Swingline Lender, as the
case may be, such Lender’s pro rata share (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 such Agent, such Issuing Bank or such Swingline Lender
in its capacity as such; and provided further that payment of any amount by any
Lender pursuant to this clause (c) shall not relieve the Company of its obligation to pay such
amount, and such Lender shall have a claim against the Company for such amount. For purposes
hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum (without
duplication) of the total Exposures and unused Commitments at the time.



(d) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower
hereby waives, any claim against 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 or thereby, the Transactions, any Loan or Letter of Credit or the
use of the proceeds thereof.



(e) All amounts due under this Section shall be payable not later than 10 days after written
demand therefor.



SECTION 11.04. Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by any Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank
that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the Issuing Banks and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.


 


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(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:




(A) the Company, provided (1) that no consent of the Company shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an
Event of Default has occurred and is continuing, any other assignee, (2) that if an
Event of Default occurred, any such assignment by Lender will not result in a
non-exempt prohibited transaction under Section 4975 of the Code or Section 406 of
ERISA or in the application of withholding tax in contravention of the terms of this
Agreement, and (3) that the Company shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the Administrative
Agent within give ten (10) Business Days after having received notice thereof; and




(B) the Administrative Agent and JPMorgan Chase Bank, N.A. for so long as it
constitutes an Issuing Bank.



(ii) Assignments shall be subject to the following additional conditions:




(A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Tranche, the amount of the Commitment or 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)
shall not be less than the US Dollar Equivalent of $5,000,000 in respect of
Commitments or Loans under any Tranche, unless each of the Company and the
Administrative Agent otherwise consent, provided that no such consent of the Company
shall be required if an Event of Default has occurred and is continuing;




(B) 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,
provided that this clause shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender’s rights and obligations in
respect of one Tranche of Commitments or Loans;




(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500;


 


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(D) the assignee, if it is not already a Lender under the applicable Tranche,
hereby represents and warrants for the benefit of the Borrowers, the
Agents and the Lenders that, as of the date of such assignment, it will comply
with Section 2.17(e) and (f) with respect to withholding tax on payments by the
Borrowers, and (ii) in relation to any assignment of rights or obligations under the
Foreign Tranche (other than if an Event of Default has occurred and is continuing);
it is a Qualified Foreign Tranche Lender;




(E) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Company and its
Subsidiaries and their respective Securities) will be made available and who may
receive such information in accordance with the assignee’s compliance procedures and
applicable laws, including Federal and state securities laws;




(F) without the prior written consent of the Administrative Agent, no
assignment shall be made to a prospective assignee that bears a relationship to the
Borrower as described in Section 108(e)(4) of the Code;




(G) no Malaysian Tranche Lender may make any assignment to any person other
than a Licensed Malaysian Bank, except where (x) permitted under applicable
Malaysian law and regulation, and (y) all applicable approvals and consents of the
relevant Malaysian Governmental Authorities (if any are required) have been obtained
in relation to such assignment; and




(H) No Foreign Tranche Lender shall assign rights or obligations under the
Foreign Tranche (other than if an Event of Default has occurred and is continuing),
unless the assignee gives the representation and warranty referred to in Section
11.04(b)(ii)(D)(ii) in the relevant Assignment and Assumption.



For the purposes of this Section 11.04(b), the term “Approved Fund” has the following
meaning:



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




(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto 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 2.15, 2.16, 2.17, 2.18 and 11.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 11.04
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 paragraph (c) of this Section.


 


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(iv) The Administrative Agent, acting for this purpose as an agent of each Borrower,
shall maintain at one of its offices 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
Commitment of, and principal amount of the Loans, and principal amount of LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive absent manifest error,
and the Borrowers, the Agents, the Issuing Banks and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Company, the other Agents, the Issuing Banks and
any Lender, at any reasonable time and from time to time upon reasonable prior notice.




(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b),
2.19(d) or 11.03(c), the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the Register unless and
until such payment shall have been made in full, together with all accrued interest thereon.
No assignment shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.



(c) Any Lender may, without the consent of any Borrower, any Agent, any Issuing Bank or any
Swingline Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that
(A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations; (C)
the Borrowers, the Agents, the Issuing Banks and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement; and (D) without the prior written consent of the Administrative Agent, no participation
shall be sold to a prospective participant that bears a relationship to the Borrower described in
Section 108(e)(4) of the Code; and (E) in relation to the Foreign Tranche only, the Participant is
a Qualified Foreign Tranche Lender on the date the Participant acquired the applicable
participation. 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


 


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approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 11.02(b) that affects such Participant. The Borrowers agree that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 2.18 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section; provided that such Participant (A) shall be subject to the requirements and
limitations therein, including the requirements under Sections 2.17(e) and (f) (it being understood
that the documentation required under Sections 2.17(e) and (f) shall be delivered to the
participating Lender); (B) agrees to be subject to the provisions of Sections 2.19 and 2.20 as if
it were an assignee under paragraph (b) of this Section; and (C) shall not be entitled to receive
any greater payment under Sections 2.15 or 2.17, with respect to any participation, than its
participating Lender would have been entitled to receive, expect to the extent such entitlement to
receive a greater payment results from a Change in Law that occurs after the Participant acquired
the applicable participation. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.19(c) as though it were a Lender. Each Lender that sells a
participation shall, acting solely for this purpose as an agent of the Borrower, maintain a
register on which it enters the name and address of each Participant and the principal amounts (and
stated interest) of each Participant’s interest in the Loans or other obligations under this
Agreement (the “Participant Register”). The entries in the Participant Register shall be
conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in
the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary.



(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



SECTION 11.05. Survival. All covenants, agreements, representations and warranties made by the Loan Parties in the
Loan Documents and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon
by the other parties hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans, and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that any Agent, any Issuing Bank
or any Lender may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.15, 2.16, 2.17, 2.18 and 11.03 and Article VIII shall survive and remain
in full force and effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the
Loans, the expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any other Loan Document or any provision hereof or thereof.


 


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SECTION 11.06. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement, the other Loan Documents and any
separate letter agreements with respect to fees payable to the Agents 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 Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.



SECTION 11.07. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.



SECTION 11.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final and in whatever currency denominated) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of any Borrower against any
of and all the obligations of such Borrower now or hereafter existing under this Agreement held by
such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.



SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement shall be construed in accordance with and governed by the law of the
State of New York.



(b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be binding (subject to appeal as provided by
applicable law) 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 any other Loan Document shall affect
any right that any Agent, any Issuing Bank or any Lender 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.


 


105









 





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



(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 11.01, and each of the Borrowers hereby appoints the Company as its
agent for service of process. Nothing in this Agreement or any other Loan Document will affect the
right of any party to this Agreement to serve process in any other manner permitted by law.



SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



SECTION 11.11. Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.



SECTION 11.12. Confidentiality. Each of the Agents, the Issuing Banks and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal
counsel, other advisors and third party service providers (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, (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in connection


 


106









 






with the
exercise of any remedies hereunder or any suit, 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 any
Borrower and its obligations, (g) with the consent of the Company or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to any Agent, any Issuing Bank or any Lender on a nonconfidential basis from
a source other than the Company. For the purposes of this Section, “Information” means all
information received from the Company or any other Borrower relating to the Company, the Borrowers
or their businesses, accounts or affairs other than any such information that is available to any
Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the
Company; provided that, in the case of information received from the Company after the date
hereof, such information is clearly identified 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 LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 11.12 FURNISHED TO IT PURSUANT
TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND ITS
AFFILIATES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL
AND STATE SECURITIES LAWS.



ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE COMPANY OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY
AND ITS AFFILIATES, AND THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE
COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A
CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.



SECTION 11.13. Conversion of Currencies.



(a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto agrees, to the fullest
extent that it may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day immediately preceding
the day on which final judgment is given.


 


107









 





(b) The obligations of each Borrower in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than the
currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be
discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction 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 Applicable Creditor in the Agreement Currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrowers contained in this Section 11.13 shall
survive the termination of this Agreement and the payment of all other amounts owing hereunder.



SECTION 11.14. USA Patriot Act; European “Know Your Customer” Checks.



(a) Each Lender that is subject to the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby notifies each Borrower that
pursuant to the requirements of the Act, it is required to obtain, verify and record information
that identifies such Borrower, which information includes the name and address of such Borrower and
other information that will allow such Lender to identify such Borrower in accordance with the Act.



(b) If (i) the introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this Agreement; (ii) any change in the
status of a Borrower after the date of this Agreement; or (iii) a proposed assignment or transfer
by a Lender of any of its rights and obligations under this Agreement to a party that is not a
Lender prior to such assignment or transfer, obliges a Global Agent or any Lender (or, in the case
of paragraph (iii) above, any prospective new Lender) to comply with “know your customer” or
similar identification procedures in circumstances where the necessary information is not already
available to it, each Borrower shall promptly upon the request of a Global Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as is reasonably requested
by such Global Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the
case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in
order for such Global Agent, such Lender or, in the case of the event described in paragraph (iii)
above, any prospective new Lender to carry out and be satisfied it has complied with all necessary
“know your customer” or other similar checks under all applicable laws and regulations pursuant to
the transactions contemplated in this Agreement and the other Loan Documents. Each Lender shall
promptly upon the request of a Global Agent supply, or procure the supply of, such documentation
and other evidence as is reasonably requested by such Global Agent (for itself) in order for such
Global Agent to carry out and be satisfied it has complied with all necessary “know your customer”
or other similar checks under all applicable laws and regulations pursuant to the transactions
contemplated in this Agreement and the other Loan Documents. The Company shall, by not less than 10
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notice to a Global Agent, notify such Global Agent (which shall promptly notify the
Lenders) of its intention to request that one of its Subsidiaries becomes an additional Borrower.
Following the giving of any notice pursuant to paragraph (c) above, if the accession of such
additional Borrower obliges a Global Agent or any Lender to comply with “know your customer” or
similar identification procedures in circumstances where the necessary information is not already
available to it, the Company shall promptly upon the request of a Global Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as is reasonably requested
by such Global Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf
of any prospective new Lender) in order for such Global Agent or such Lender or any prospective new
Lender to carry out and be satisfied it has complied with all necessary “know your customer” or
other similar checks under all applicable laws and regulations pursuant to the accession of such
Subsidiary to this Agreement as an additional Borrower.



SECTION 11.15. English Language. All certificates, instruments and other documents to be delivered under or supplied in
connection with this Agreement shall be in the English language or shall attach a certified English
translation thereof, which translation shall be the governing version. Within one month of the
delivery of any financial statements or other information written in a language other than English,
the Company shall deliver to the Administrative Agent and the Lenders sufficient copies for all the
Lenders of an English translation of such financial statements.



SECTION 11.16. Borrower Limitations. Other than the Company, each Borrower shall only be liable for its Obligations (including,
without limitation, Loans extended to it) and shall not be liable for any other Borrower’s
Obligations. The Company shall be liable for all of the Borrowers’ Obligations. Each Subsidiary
Guarantor shall guaranty the repayment of all Obligations, irrespective of the Borrower that incurs
such Obligations.



SECTION 11.17. Malaysian Stamp Duty Declaration. For Malaysian stamp duty purposes, it is hereby declared that this Agreement and the other
Loan Documents relevant to the Malaysian Tranche are instruments employed in one transaction to
secure the obligations of the Malaysian Borrower in respect of the Malaysian Tranche, and for the
purposes of Item 27(b) of the First Schedule to the Stamp Act of 1949 of Malaysia, this Agreement
shall be deemed to be the principal instrument employed in such transaction to secure the maximum
principal amount of MYR15,350,000, being the US Dollar Equivalent of the aggregate amount of the
Malaysian Tranche Commitment as at the date of this Agreement. For the avoidance of doubt, the
parties hereto acknowledge and declare that for the purposes of the Stamp Act of 1949 of Malaysia,
the provisions of this Agreement which do not relate to the Malaysian Tranche, the Malaysian
Tranche Revolving Loans, the Malaysian Borrower, any pledge over Equity Interests of the Malaysian
Borrower, or any Malaysian Tranche Lender, relate exclusively to things done or to be done out of
Malaysia.



The remainder of this page is intentionally blank.





 


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



	 	 	 	 	 	 	 	 	 
	 	 	A. SCHULMAN, INC.,	 	 
	 	 	as the Company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Paul F. DeSantis	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Paul F. DeSantis	 	 
	 

	 	 	 	Title:
	 	Vice President, Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	COURTENAY POLYMERS PTY. LIMITED,	 	 
	 	 	as the Australian Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Paul F. DeSantis	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Paul F. DeSantis	 	 
	 

	 	 	 	Title:
	 	Director and acting as Power of Attorney	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ICO POLYMERS (MALAYSIA) SDN. BHD.,	 	 
	 	 	as the Malaysian Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Paul F. DeSantis	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Paul F. DeSantis	 	 
	 

	 	 	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	A. SCHULMAN INTERNATIONAL SERVICES BVBA,	 	 
	 	 	as the Belgian Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Paul F. DeSantis	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Paul F. DeSantis	 	 
	 

	 	 	 	Title:
	 	Manager	 	 




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	 	 	JPMORGAN CHASE BANK, N.A.,	 	 
	 	 	individually, as a Lender and as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robert S. Shepard	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robert S. Shepard	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	J.P. MORGAN EUROPE LIMITED,	 	 
	 	 	as a Global Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Belinda Lucas	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Belinda Lucas	 	 
	 

	 	 	 	Title:
	 	Associate	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	J.P. MORGAN CHASE BANK BERHAD,	 	 
	 	 	individually, as a Lender and as a Global Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Bridge Eunice Lee Pei Jun	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Bridget Eunice Lee Pei Jun	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 





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	 	 	FIFTH THIRD BANK,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ James P. Byrnes	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	James P. Byrnes	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 





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	 	 	RBS CITIZENS, N.A.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Joshua Botnick	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Joshua Botnick	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 





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	 	 	BANK OF THE WEST,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Sidney Jordan	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Sidney Jordan	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 





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	 	 	HSBC BANK USA, N.A.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robert J. McArdle	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robert J. McArdle	 	 
	 

	 	 	 	Title:
	 	First Vice President	 	 






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	 	 	COMMERZBANK AG,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Patrick Hartweger	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Patrick Hartweger	 	 
	 

	 	 	 	Title:
	 	Senior Relationship Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Peter Wesemeier	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Peter Wesemeier	 	 
	 

	 	 	 	Title:
	 	Relationship Manager	 	 





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	 	 	PNC BANK, NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Joseph G. Moran	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Joseph G. Moran	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 





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	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Victor Pierzchalski	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Victor Pierzchalski	 	 
	 

	 	 	 	Title:
	 	Authorized Signatory	 	 





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	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Nickolas Kepler	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Nickolas Kepler	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






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SCHEDULE 2.01

LENDERS AND COMMITMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	US Tranche	 	 	 	 	 	 	 
	 	 	Revolving	 	 	Foreign Tranche	 	 	Malaysian Tranche	 
	Lender	 	Commitment	 	 	Commitment	 	 	Commitment	 
	JPMorgan Chase
Bank, N.A.
	 	$	41,000,000	 	 	$	9,000,000	 	 	$	0	 
	J.P. Morgan Chase
Bank Berhad
	 	$	0	 	 	$	0	 	 	$	5,000,000	 
	Fifth Third Bank
	 	$	26,000,000	 	 	$	9,000,000	 	 	$	0	 
	PNC Bank, National
Association
	 	$	26,000,000	 	 	$	9,000,000	 	 	$	0	 
	RBS Citizens, N.A.
	 	$	35,000,000	 	 	$	0	 	 	$	0	 
	Wells Fargo Bank,
National
Association
	 	$	26,000,000	 	 	$	9,000,000	 	 	$	0	 
	Bank of the West
	 	$	26,250,000	 	 	$	0	 	 	$	0	 
	The Bank of
Tokyo-Mitsubishi
UFJ, Ltd.
	 	$	26,250,000	 	 	$	0	 	 	$	0	 
	Commerzbank AG
	 	$	26,250,000	 	 	$	0	 	 	$	0	 
	HSBC Bank USA, N.A.
	 	$	17,250,000	 	 	$	9,000,000	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Totals
	 	$	250,000,000	 	 	$	45,000,000	 	 	$	5,000,000	 
	 
	 	 	 	 	 	 	 	 	 






 


 









 







SCHEDULE 3.01




KYC INFORMATION FOR BORROWERS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Tax identification
	 	 	 	 	Jurisdiction	 	 	 	number and other
	 	 	Type of	 	of	 	 	 	identification
	Legal Name	 	Organization	 	Organization	 	Address	 	numbers
	A. Schulman, Inc.

	 	Corporation
	 	U.S. (Delaware)
	 	3550 West Market Street 

Akron, OH 44333
	 	TIN 34-0514850
	A. Schulman International Services BVBA

	 	Limited Liability Company
	 	Belgium
	 	Pedro Colomalaan 25 
2880 Bornem, Belgium
	 	TIN 98-0633235
	Courtenay Polymers Pty. Limited

	 	Corporation
	 	Australia
	 	198 Boundary Road 

Braeside, VIC 3195, Australia
	 	TIN 98-0189217
	ICO Polymers (Malaysia) Sdn. Bhd.

	 	Corporation
	 	Malaysia
	 	2, Jalan Wawasan Utama, 
Kawasan Perindustrian 
83300 Batu Pahat, Johor, 
Malaysia
	 	C 10279575-04