exv10w1






Exhibit 10.1




EXECUTION VERSION




Published CUSIP Number: 87936FAC6




CREDIT AGREEMENT




Dated as of February 25, 2011



among



TELEDYNE TECHNOLOGIES INCORPORATED,

as a Borrower and a Guarantor,



CERTAIN OF ITS SUBSIDIARIES,

as Designated Borrowers,



CERTAIN OF ITS SUBSIDIARIES,

as Guarantors,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,



JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Syndication Agent,



and



THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.



and



U.S. BANK NATIONAL ASSOCIATION

as co-Documentation Agents,



and



THE OTHER LENDERS PARTY HERETO



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED



and



J.P. MORGAN SECURITIES LLC,

as Joint Book Managers and Joint Lead Arrangers





 









 








TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	25	 
	1.03 Accounting Terms
	 	 	25	 
	1.04 Exchange Rates; Currency Equivalents
	 	 	26	 
	1.05 Additional Alternative Currencies
	 	 	26	 
	1.06 Change of Currency
	 	 	27	 
	1.07 Rounding
	 	 	27	 
	1.08 References to Agreements and Laws
	 	 	27	 
	1.09 Times of Day
	 	 	28	 
	1.10 Letter of Credit Amounts
	 	 	28	 
	 
	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	28	 
	 
	 	 	 	 
	2.01 Revolving Loans
	 	 	28	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	28	 
	2.03 Letters of Credit
	 	 	31	 
	2.04 Swing Line Loans
	 	 	39	 
	2.05 Prepayments
	 	 	42	 
	2.06 Termination or Reduction of Aggregate Revolving Commitments
	 	 	43	 
	2.07 Repayment of Loans
	 	 	44	 
	2.08 Interest
	 	 	44	 
	2.09 Fees
	 	 	45	 
	2.10 Computation of Interest and Fees
	 	 	45	 
	2.11 Evidence of Debt
	 	 	46	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	46	 
	2.13 Sharing of Payments by Lenders
	 	 	48	 
	2.14 Cash Collateral
	 	 	49	 
	2.15 Defaulting Lenders
	 	 	50	 
	2.16 Designated Borrowers
	 	 	52	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	53	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	53	 
	3.02 Illegality
	 	 	57	 
	3.03 Inability to Determine Rates
	 	 	57	 
	3.04 Increased Costs
	 	 	58	 
	3.05 Funding Losses
	 	 	59	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	60	 
	3.07 Survival
	 	 	60	 
	 
	 	 	 	 
	ARTICLE IV GUARANTY
	 	 	61	 
	 
	 	 	 	 
	4.01 The Guaranty
	 	 	61	 
	4.02 Obligations Unconditional
	 	 	61	 
	4.03 Reinstatement
	 	 	63	 
	4.04 Certain Additional Waivers
	 	 	63	 
	4.05 Remedies
	 	 	63	 
	4.06 Rights of Contribution
	 	 	64	 






 









 






	 	 	 	 	 

	4.07 Guarantee of Payment; Continuing Guarantee
	 	 	64	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	64	 
	 
	 	 	 	 
	5.01 Conditions of Initial Credit Extension
	 	 	64	 
	5.02 Conditions to all Credit Extensions
	 	 	66	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	67	 
	 
	 	 	 	 
	6.01 Existence, Qualification and Power
	 	 	67	 
	6.02 Authorization; No Contravention
	 	 	67	 
	6.03 Governmental Authorization; Other Consents
	 	 	67	 
	6.04 Binding Effect
	 	 	67	 
	6.05 Financial Statements; No Material Adverse Effect
	 	 	68	 
	6.06 Litigation
	 	 	68	 
	6.07 No Default
	 	 	69	 
	6.08 Ownership of Property; Liens
	 	 	69	 
	6.09 Environmental Compliance
	 	 	69	 
	6.10 Insurance
	 	 	69	 
	6.11 Taxes
	 	 	69	 
	6.12 ERISA Compliance
	 	 	69	 
	6.13 Subsidiaries
	 	 	70	 
	6.14 Margin Regulations; Investment Company Act
	 	 	70	 
	6.15 Disclosure
	 	 	71	 
	6.16 Compliance with Laws
	 	 	71	 
	6.17
Intellectual Property; Licenses, Etc.
	 	 	71	 
	6.18 Solvency
	 	 	71	 
	6.19 Legal Name
	 	 	71	 
	6.20 Labor Matters
	 	 	71	 
	6.21 Representations as to Foreign Obligors
	 	 	72	 
	 
	 	 	 	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	72	 
	 
	 	 	 	 
	7.01 Financial Statements
	 	 	73	 
	7.02 Certificates; Other Information
	 	 	73	 
	7.03 Notices
	 	 	75	 
	7.04 Payment of Obligations
	 	 	75	 
	7.05
Preservation of Existence, Etc.
	 	 	75	 
	7.06 Maintenance of Properties
	 	 	76	 
	7.07 Maintenance of Insurance
	 	 	76	 
	7.08 Compliance with Laws
	 	 	76	 
	7.09 Books and Records
	 	 	76	 
	7.10 Inspection Rights
	 	 	76	 
	7.11 Use of Proceeds
	 	 	77	 
	7.12 Additional Guarantors
	 	 	77	 
	7.13 ERISA Compliance
	 	 	77	 
	7.14 Approvals and Authorizations
	 	 	77	 
	 
	 	 	 	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	77	 
	 
	 	 	 	 
	8.01 Liens
	 	 	77	 
	8.02 Investments
	 	 	80	 
	8.03 Priority Indebtedness
	 	 	81	 
	8.04 Fundamental Changes
	 	 	81	 
	8.05 Dispositions
	 	 	81	 






 









 






	 	 	 	 	 

	8.06 Change in Nature of Business
	 	 	82	 
	8.07 Transactions with Affiliates and Insiders
	 	 	82	 
	8.08 Use of Proceeds
	 	 	82	 
	8.09 Financial Covenants
	 	 	82	 
	8.10 Organization Documents
	 	 	83	 
	 
	 	 	 	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	83	 
	 
	 	 	 	 
	9.01 Events of Default
	 	 	83	 
	9.02 Remedies Upon Event of Default
	 	 	85	 
	9.03 Application of Funds
	 	 	85	 
	 
	 	 	 	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	86	 
	 
	 	 	 	 
	10.01 Appointment and Authority
	 	 	86	 
	10.02 Rights as a Lender
	 	 	87	 
	10.03 Exculpatory Provisions
	 	 	87	 
	10.04 Reliance by Administrative Agent
	 	 	88	 
	10.05 Delegation of Duties
	 	 	88	 
	10.06 Resignation of Administrative Agent
	 	 	88	 
	10.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	89	 
	10.08 No
Other Duties, Etc.
	 	 	89	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	89	 
	10.10 Releases
	 	 	90	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS
	 	 	90	 
	 
	 	 	 	 
	11.01
Amendments, Etc.
	 	 	90	 
	11.02 Notices; Effectiveness; Electronic Communication
	 	 	92	 
	11.03 No Waiver; Cumulative Remedies
	 	 	94	 
	11.04 Expenses; Indemnity; Damage Waiver
	 	 	94	 
	11.05 Payments Set Aside
	 	 	95	 
	11.06 Successors and Assigns
	 	 	96	 
	11.07 Confidentiality
	 	 	100	 
	11.08 Set-off
	 	 	100	 
	11.09 Interest Rate Limitation
	 	 	101	 
	11.10 Counterparts
	 	 	101	 
	11.11 Integration
	 	 	101	 
	11.12 Survival of Representations and Warranties
	 	 	101	 
	11.13 Severability
	 	 	102	 
	11.14 Replacement of Lenders
	 	 	102	 
	11.15
Governing Law; Jurisdiction, Etc.
	 	 	103	 
	11.16 Waiver of Right to Trial by Jury
	 	 	103	 
	11.17 No Advisory or Fiduciary Responsibility
	 	 	104	 
	11.18 USA PATRIOT Act Notice
	 	 	104	 
	11.19 Judgment Currency
	 	 	104	 
	11.20 Waiver of Notice of Termination
	 	 	105	 






 









 






SCHEDULES




	 	 	 

	1.01(a)

	 	Existing Letters of Credit
	1.01(b)

	 	Mandatory Cost Formulae
	2.01

	 	Commitments and Pro Rata Shares
	6.13

	 	Subsidiaries
	6.20

	 	Collective Bargaining Agreements
	8.01

	 	Liens Existing on the Closing Date
	8.02

	 	Investments Existing on the Closing Date
	11.02

	 	Certain Addresses for Notices






EXHIBITS




	 	 	 

	A

	 	Form of Loan Notice
	B

	 	Form of Swing Line Loan Notice
	C-1

	 	Form of Revolving Note
	C-2

	 	Form of Swing Line Note
	D

	 	Form of Compliance Certificate
	E

	 	Form of Assignment and Assumption
	F

	 	Form of Joinder Agreement
	G

	 	Designated Borrower Request and Assumption Agreement
	H

	 	Designated Borrower Notice











 









 








CREDIT AGREEMENT




     This CREDIT AGREEMENT is entered into as of February 25, 2011 among TELEDYNE TECHNOLOGIES
INCORPORATED, a Delaware corporation (the “Company”), certain Subsidiaries of the Company
party hereto pursuant to Section 2.16 (each a “Designated Borrower” and, together with the
Company, the “Borrowers” and, each a “Borrower”), the Guarantors (defined herein),
the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer.



     The Company has requested that the Lenders provide a $550,000,000 credit facility for the
purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set
forth herein.



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



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




1.01 Defined Terms.




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



     “Acquisition”, by any Person, means the acquisition by such Person, in a single
transaction or in a series of related transactions, of all or substantially all of the Property of
another Person or all or substantially all of the Voting Stock of another Person, in each case
whether or not involving a merger or consolidation with such other Person and whether for cash,
property, services, assumption of Indebtedness, securities or otherwise.



     “Acquisition Event” means an Acquisition or series of Acquisitions by the Company and
its Subsidiaries.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent Fee Letter” means the letter agreement, dated January 21, 2011
among the Company, the Administrative Agent and MLPF&S.



     “Administrative Agent’s Office” means with respect to any currency, the Administrative
Agent’s address and, as appropriate, account as set forth on Schedule 11.02 with respect to such
currency, or such other address or account with respect to such currency as the Administrative
Agent may from time to time notify to the Company and the Lenders.



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



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. “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.
Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by
another Person if such other Person possesses, directly or indirectly, power to vote 10% or more of
the securities having ordinary voting power for the election of directors, managing general
partners or the equivalent.




     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The amount of the Aggregate Revolving Commitments in effect on the Closing Date is FIVE HUNDRED
FIFTY MILLION DOLLARS ($550,000,000).



     “Agreement” means this Credit Agreement, as amended, modified, supplemented and
extended in writing from time to time.



     “Agreement Accounting Principles” means GAAP, provided that with respect to the
calculations for purposes of determining compliance with the covenants set forth in Sections 8.01,
8.02, 8.03, 8.05 and 8.09, such term means generally accepted accounting principles in effect as of
the Closing Date applied on a basis consistent with that used in the preparation of the Audited
Financial Statements.



     “Alternative Currency” means each of Euro, Canadian Dollar, Sterling and each other
currency (other than Dollars) that is approved in accordance with Section 1.05.



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



     “Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate
Revolving Commitments and $75,000,000. The Alternative Currency Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



     “Applicable Foreign Obligor Documents” has the meaning specified in Section 7.12(a).



     “Applicable Rate” means in the case of the Revolving Loans, the Letters of Credit, the
Swing Line Loans and the Facility Fee, the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 7.02(a):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Base Rate	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Loans and	 	 
	Pricing	 	 	 	Facility	 	Letter of	 	Swing Line	 	Eurocurrency
	Level	 	Consolidated Leverage Ratio	 	Fee	 	Credit Fee	 	Loans	 	Loans
	1

	 	Greater than or equal to 3.0 to 1.0
	 	 	0.45	%	 	 	2.05	%	 	 	1.05	%	 	 	2.05	%
	 
	2

	 	Less than 3.0 to 1.0 but greater
than or equal to 2.5 to 1.0
	 	 	0.40	%	 	 	1.85	%	 	 	0.85	%	 	 	1.85	%
	 
	3

	 	Less than 2.5 to 1.0 but greater
than or equal to 2.0 to 1.0
	 	 	0.35	%	 	 	1.65	%	 	 	0.65	%	 	 	1.65	%






2









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Base Rate	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Loans and	 	 
	Pricing	 	 	 	Facility	 	Letter of	 	Swing Line	 	Eurocurrency
	Level	 	Consolidated Leverage Ratio	 	Fee	 	Credit Fee	 	Loans	 	Loans
	4

	 	Less than 2.0 to 1.0 but greater
than or equal to 1.5 to 1.0
	 	 	0.30	%	 	 	1.45	%	 	 	0.45	%	 	 	1.45	%
	 
	5

	 	Less than 1.5 to 1.0 but greater
than or equal to 1.0 to 1.0
	 	 	0.225	%	 	 	1.275	%	 	 	0.275	%	 	 	1.275	%
	 
	6

	 	Less than 1.0 to 1.0
	 	 	0.20	%	 	 	1.05	%	 	 	0.05	%	 	 	1.05	%





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the
delivery of a Compliance Certificate pursuant to Section 7.02(a); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered and shall continue to apply until the
first Business Day immediately following the date a Compliance Certificate is delivered in
accordance with Section 7.02(a), whereupon the Applicable Rate shall be adjusted based upon the
calculation of the Consolidated Leverage Ratio contained in such Compliance Certificate. The
Applicable Rate in effect from the Closing Date through the first Business Day immediately
following the date a Compliance Certificate is required to be delivered pursuant to Section 7.02(a)
for the fiscal quarter ending March 31, 2011 shall be determined based upon Pricing Level 5.
Notwithstanding anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).




     “Applicable Time” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be
necessary for timely settlement on the relevant date in accordance with normal banking procedures
in the place of payment.



     “Applicant Borrower” has the meaning specified in Section 2.16.



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



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



     “Assignment and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit E.



     “Attorney Costs” means and includes all reasonable fees, expenses and disbursements of
any law firm or other external counsel.



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the
capitalized amount of the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person



3









 







prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease and (c) in respect of any Securitization Transaction of any
Person, the outstanding principal amount of such financing, after taking into account reserve
accounts and making appropriate adjustments, determined by the Administrative Agent in its
reasonable judgment.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended January 3, 2010, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Company and its Subsidiaries, including the notes thereto.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (i) the Maturity Date, (ii) the date of termination of the Aggregate Revolving
Commitments pursuant to Section 2.06, and (iii) the date of termination of the commitment of each
Lender to make Revolving Loans and of the obligation of the L/C Issuer to make L/C Credit
Extensions pursuant to Section 9.02.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate” and (c) the Eurocurrency Rate
plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors including
Bank of America’s costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above, or below such
announced rate. Any change in the “prime rate” announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such change.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “Borrower” and “Borrowers” have the meaning specified in the introductory
paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 7.02.



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



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




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




     (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in
respect



4









 







of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET
Day;




     (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on which dealings
in deposits in the relevant currency are conducted by and between banks in the London or, if
not conducted in London, the applicable offshore interbank market for such currency; and




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



     “Capital Lease” means, as applied to any Person, any lease of any Property by that
Person as lessee which, in accordance with Agreement Accounting Principles, is required to be
accounted for as a capital lease on the balance sheet of that Person.



     “Capital Stock” means (i) in the case of a corporation, capital stock, (ii) in the
case of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (iii) in the case of a partnership,
partnership interests (whether general or limited), (iv) in the case of a limited liability
company, membership interests and (v) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable)
and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans or
obligations of Lenders to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting
from such collateral shall agree in its sole discretion, other credit support, in each case
pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and
(b) the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral” shall have a
meaning correlative to the foregoing and shall include the proceeds of such cash collateral and
other credit support.



     “Cash Equivalents” means, as at any date, (a) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support thereof) having maturities of
not more than twelve months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing
having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or
the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of
not more than 270 days from the date of acquisition, (c) commercial paper and variable or fixed
rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof)
or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank
or trust company (including any of the Lenders) or recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the
United States in which such Person shall have a perfected first priority security interest



5









 







(subject
to no other Liens) and having, on the date of purchase thereof, a fair market value of at least
100% of the amount of the repurchase obligations and (e) Investments, classified in accordance with
Agreement Accounting Principles as current assets, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which are administered by reputable financial
institutions having capital of at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a) through (d).



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority; provided,
however, for purposes of this Agreement, the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, guidelines and directives in connection therewith are deemed to
have gone into effect and adopted after the date of this Agreement.



     “Change of Control” means if any Person or Persons acting in concert, together with
the Affiliates thereof, shall become in the aggregate, directly or indirectly, the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% (by number of
shares) of the issued and outstanding Voting Stock of the Company.



     “Closing Date” means the date hereof.



     “Commitment” means, as to each Lender, the Revolving Commitment of such Lender.



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



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



     “Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus the following
to the extent deducted in calculating such Consolidated Net Income: (a) Consolidated Interest
Charges for such period, (b) the provision for federal, provincial, state, local and foreign income
taxes payable by the Company and its Subsidiaries for such period; (c) the amount of depreciation
and amortization expense for such period; (d) non-cash items that reduce Consolidated Net Income in
such period; (e) reasonably documented fees and expenses paid or payable in cash to unaffiliated
third parties in connection with the transactions contemplated hereby and with any other issuances
of debt or equity permitted hereby, whether or not such issuances are successful; and (f)
reasonably documented fees and expenses paid or payable in cash to unaffiliated third parties in
connection with Acquisitions or dispositions permitted hereby, whether or not such acquisitions or
dispositions are successful; provided, that for purposes of calculating the Consolidated
Leverage Ratio in Section 8.09(a) and the Consolidated Interest Coverage Ratio in Section 8.09(b),
Consolidated EBITDA shall include, on a Pro Forma Basis for the period consisting of the four
fiscal quarters ending on such date, the Consolidated EBITDA attributable to all businesses and
assets acquired after the beginning of such period as if such business and/or assets had been owned
for the entire period and shall exclude, on a Pro Forma Basis for the period consisting of the four
fiscal quarters ending on such date, the Consolidated EBITDA attributable to all businesses and
assets disposed after the beginning of such period as if such businesses and/or assets had not been
owned for the entire period.



     “Consolidated Funded Indebtedness” means Funded Indebtedness of the Company and its
Subsidiaries on a consolidated basis.



6









 





     “Consolidated Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) all interest, premium
payments, debt discount, fees, charges and related expenses of the Company and its Subsidiaries in
connection with Indebtedness (including capitalized interest and other fees and charges incurred
under any asset securitization program) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with Agreement Accounting
Principles, plus (ii) the portion of rent expense of the Company and its Subsidiaries with respect
to such period under Capital Leases or Synthetic Leases that is treated as interest in accordance
with Agreement Accounting Principles.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four fiscal quarters most recently ended for
which the Company has delivered financial statements pursuant to Section 7.01(a) or (b) to (b)
Consolidated Interest Charges for the period of the four fiscal quarters most recently ended.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.



     “Consolidated Net Debt to EBITDA Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness, net of unencumbered cash and Cash Equivalents of the
Company and its Domestic Subsidiaries in excess of $25,000,000, provided that the Total Revolving
Outstandings are less than $100,000,000, as of such date to (b) Consolidated EBITDA for the period
of the four fiscal quarters most recently ended.



     “Consolidated Net Income” means, for any period, for the Company and its Subsidiaries
on a consolidated basis, the net income of the Company and its Subsidiaries (excluding
extraordinary non-cash gains, extraordinary non-cash losses and any other non-cash impairment
charges related to goodwill or acquired intangible assets) for that period, as determined in
accordance with Agreement Accounting Principles.



     “Consolidated Net Worth” means, as of any date of determination, consolidated
shareholders’ equity of the Company and its Subsidiaries as of that date determined in accordance
with Agreement Accounting Principles.



     “Consolidated Total Assets” means, as of any date of determination, the total amount
of all assets of the Company and its Subsidiaries as of that date determined in accordance with
Agreement Accounting Principles.



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



     “Control” has the meaning specified in the definition of “Affiliate.”



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



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



7









 





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



     “Default Rate” means (a) with respect to Obligations other than Letter of Credit Fees,
an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to
Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a
Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus 2%
per annum, and (b) with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum, in all cases to the fullest extent permitted by applicable Laws.



     “Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed
to perform any of its funding obligations hereunder, including in respect of its Loans or
participations in respect of
Letters of Credit or Swing Line Loans, within three (3) Business Days of the date required to be
funded by it hereunder, unless such failure is due to such Lender’s good faith determination that a
condition precedent has not occurred, (b) has notified the Borrower or the Administrative Agent
that it does not intend to comply with its funding obligations or has made a public statement to
that effect with respect to its funding obligations hereunder or under other agreements in which it
commits to extend credit, (c) has failed, within three (3) Business Days after request by the
Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will
comply with its funding obligations or (d) has, or has a direct or indirect parent company that
has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or a custodian appointed for it or (iii)
taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any
such proceeding or appointment; provided, that, a Lender shall not be a Defaulting Lender
solely by virtue of the ownership or acquisition of any Equity Interests in that Lender or any
direct or indirect parent company thereof by a Governmental Authority.



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



     “Designated Borrower Notice” has the meaning specified in Section 2.16.



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



     “Designated Borrower Request and Assumption Agreement” has the meaning specified in
Section 2.16.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition of any Property by the Company or any Subsidiary (including the Capital Stock of any
Subsidiary), including any sale, assignment, transfer or other disposal, with or without recourse,
of any notes or accounts receivable or any rights and claims associated therewith, but excluding
(i) the sale, lease, license, transfer or other disposition of assets in the ordinary course of
business of the Company and its Subsidiaries, (ii) the sale, lease, license, transfer or other
disposition of machinery and equipment no longer used or useful in the conduct of business of the
Company and its Subsidiaries, (iii) any sale, lease, license, transfer or



8









 







other disposition of
Property by the Company or any Subsidiary to the Company or any Subsidiary and (iv) any Involuntary
Disposition and (v) any sale or transfer of property acquired by the Company or any Subsidiary
after the Closing Date to any Person within 365 days following the acquisition or construction of
such property by the Company or any Subsidiary of the Company or a Subsidiary shall concurrently
with such sale or transfer, lease such property, as lessee.



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



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



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Earn Out Obligations” means, with respect to an Acquisition, all obligations of the
Company or any Subsidiary to make earn out or other contingency payments pursuant to the
documentation relating to such Acquisition. The amount of any Earn Out Obligation shall be deemed
to be the aggregate liability in respect thereof as recorded on the balance sheet of the Company
and its Subsidiaries in accordance with Agreement Accounting Principles.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 11.06(b)(ii), (iv) and (vi) (subject to such consents, if any, as may be required
under Section 11.06(b)(ii)).



     “EMU” means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.



     “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



     “Environmental Laws” means any and all federal, state, local, foreign and other
applicable statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental restrictions in each case
relating to pollution and the protection of the environment or the release of any materials into
the environment, including those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.



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



     “Equity Issuance” means any issuance by the Company or any Subsidiary to any Person of
shares of its Capital Stock, other than (a) any issuance of shares of its Capital Stock pursuant to
the exercise of



9









 







options or warrants, (b) any issuance of shares of its Capital Stock pursuant to
the conversion of any debt securities to equity or the conversion of any class equity securities to
any other class of equity securities, (c) any issuance of options or warrants relating to its
Capital Stock, and (d) any issuance by the Company of shares of its Capital Stock as consideration
for a Permitted Acquisition. The term “Equity Issuance” shall not be deemed to include any
Disposition.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
regulations issued pursuant thereto.



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity was a “substantial employer” as defined in Section
4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination
under Sections 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate
a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the
determination that any Pension Plan is considered an at-risk plan or a plan in endangered or
critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304
and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.



     “Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.



     “Eurocurrency Base Rate” means:




     (a) for any Interest Period with respect to a Eurocurrency Rate Loan, the rate per
annum equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or such other commercially available source providing quotations of BBA LIBOR as
may be designated by the Administrative Agent from time to time) at approximately 11:00
a.m., London time, two London Banking Days prior to the commencement of such Interest
Period, for Dollar deposits in the relevant currency (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period or (ii) if such published
rate is not available at such time for any reason, the rate determined by the Administrative
Agent to be the rate at which deposits in the relevant currency for delivery on the first
day of such Interest Period in Same Day Funds in the approximate amount of the Eurocurrency
Rate Loan being made, continued or converted and with a term equivalent to such Interest
Period would be offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market for such currency at their request at approximately 11:00 a.m.
(London time) two London Banking Days prior to the commencement of such Interest Period; and



10









 






     (b) for any interest rate calculation with respect to a Base Rate Loan on any date, the
rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined
two London Banking Days prior to such date for Dollar deposits being delivered in the London
interbank market for a term of one month commencing that day or (ii) if such published rate
is not available at such time for any reason, the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of
determination in same day funds in the approximate amount of the Base Rate Loan being made
or maintained and with a term equal to one month would be offered by Bank of America’s
London Branch to major banks in the London interbank eurodollar market at their request at
the date and time of determination.



     “Eurocurrency Rate” means (a) for any Interest Period with respect to any Eurocurrency
Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient
obtained by dividing (i) the Eurocurrency Base Rate for such Eurocurrency Rate Loan for such
Interest Period by (ii) one minus the Eurocurrency Reserve Percentage for such Eurocurrency Rate
Loan for such Interest Period and (b) for any day with respect to any Base Rate Loan the interest
rate on which is determined by
reference to the Eurocurrency Rate, a rate per annum determined by the Administrative Agent to be
equal to the quotient obtained by dividing (i) the Eurocurrency Base Rate for such Base Rate Loan
for such day by (ii) one minus the Eurocurrency Reserve Percentage for such Base Rate Loan for such
day.



     “Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on clause
(a) of definition of “Eurocurrency Rate.” Eurocurrency Rate Loans may be denominated in Dollars or
in an Alternative Currency. All Loans denominated in an Alternative Currency must be Eurocurrency
Rate Loans, and all Loans advanced to any UK Borrower must be Eurocurrency Rate Loans.



     “Eurocurrency Reserve Percentage” means, for any day, the reserve percentage
(expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”). The Eurocurrency Rate for each outstanding Eurocurrency Rate Loan and for each
outstanding Base Rate Loan the interest rate on which is determined by reference to the
Eurocurrency Rate shall be adjusted automatically as of the effective date of any change in the
Eurocurrency Reserve Percentage.



     “Event of Default” has the meaning specified in Section 9.01.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which such Borrower is located, (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Company under Section 11.14),
any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to
such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply
with Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the applicable Borrower with respect to such withholding tax pursuant to



11









 







Section 3.01(a), (d) in the case of a Foreign Lender (other than an assignee pursuant to a request
by the Company under Section 11.14), any United Kingdom withholding tax that is attributable to
such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply
with Section 3.01(e)(iii) and (e) any withholding Taxes imposed on any “withholdable payment”
payable to such recipient as a result of the failure of such recipient to satisfy the applicable
requirements as in effect after December 31, 2012 under FATCA to establish that such payment is
exempt from withholding under FATCA. Notwithstanding anything to the contrary contained in this
definition, “Excluded Taxes” shall not include any withholding tax imposed at any time on payments
made by or on behalf of a Foreign Obligor to any Lender hereunder or under any other Loan Document,
provided that such Lender shall have complied with Section 3.01(e)(i) and, with respect to
the Obligations of any UK Borrower, Section 3.01(e)(iii).



     “Existing Credit Agreement” means that certain Credit Agreement dated as of July 14,
2006 among the Company, the lenders party thereto and Bank of America, N.A., as agent, as amended
or modified from time to time.



     “Existing Letters of Credit” means the standby letters of credit described by date of
issuance, letter of credit number, undrawn amount, name of beneficiary and date of expiry on
Schedule 1.01(a).



     “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code and any
regulations promulgated thereunder or official interpretations thereof.



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



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



     “Foreign Obligor” means a Designated Borrower that is a Foreign Subsidiary.



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



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



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations other
than L/C Obligations as to which such Defaulting Lender’s participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b)
with respect to the Swing Line Lender, such Defaulting Lender’s Pro Rata Share of Swing Line Loans
other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.



12









 





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



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




     (a) all obligations for borrowed money, whether current or long-term (including the
Obligations) and all obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;




     (b) all purchase money Indebtedness;




     (c) all obligations arising under letters of credit (including standby), bankers’
acceptances, bank guaranties, surety bonds and similar instruments (for the avoidance of
doubt, this clause (c) shall not be deemed to include performance bonds);




     (d) all obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business), including without
limitation, any Earn Out Obligations;




     (e) the Attributable Indebtedness of Capital Leases and Synthetic Leases;




     (f) the Attributable Indebtedness of Securitization Transactions;




     (g) all preferred stock or other equity interests providing for mandatory redemptions,
sinking fund or like payments prior to the Maturity Date;




     (h) all Guarantees with respect to Indebtedness of the types specified in clauses (a)
through (g) above of another Person; and




     (i) all Indebtedness of the types referred to in clauses (a) through (h) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or joint venturer,
except to the extent such Indebtedness is expressly made non-recourse to such Person.


For purposes hereof, (x) the amount of any obligation arising under letters of credit (including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments shall be the maximum amount available to be drawn thereunder and (y) the amount of any
Guarantee shall be the amount of the Indebtedness subject to such Guarantee.




     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, consistently applied.



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



13









 





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



     “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders pursuant to Article IV hereof.



     “Guarantors” means a collective reference to (a) the Company, in its capacity as a
guarantor of the Designated Borrower Obligations and (b) the Subsidiary Guarantors.



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



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



     “Indebtedness” means, as to any Person at any time, without duplication, all items
which would, in conformity with Agreement Accounting Principles, be classified as indebtedness on a
balance sheet of such Person at such time, as well as the following, whether or not included as
indebtedness or liabilities in accordance with Agreement Accounting Principles:




     (a) all Funded Indebtedness;




     (b) net obligations under any Swap Contract;




     (c) all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) and (b) above of any other Person; and




     (d) all Indebtedness of the types referred to in clauses (a) through (c) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which the Company or a Subsidiary is a general partner or
joint venturer, unless such Indebtedness is expressly made non-recourse to the Company or
such Subsidiary.



14









 




For purposes hereof (y) the amount of any net obligation under any Swap Contract on any date shall
be deemed to be the Swap Termination Value thereof as of such date and (z) the amount of any
Guarantee shall be the amount of the Indebtedness subject to such Guarantee.




     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 11.04.



     “Interest Payment Date” means (a) as to any Loan other than a Base Rate Loan, the last
day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date.



     “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the
Company in its Loan Notice; provided that:




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




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




     (iii) no Interest Period shall extend beyond the Maturity Date.



     “Interim Financial Statements” has the meaning set forth in Section 5.01(c).



     “Internal Revenue Code” means the Internal Revenue Code of 1986.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Capital Stock of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person, or (c) an
Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.



     “Involuntary Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any Property of the Company or any of its
Subsidiaries.



     “IP Rights” has the meaning set forth in Section 6.17.



     “IRS” means the United States Internal Revenue Service.



15









 





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



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Company (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of
Credit.



     “Joinder Agreement” means a joinder agreement substantially in the form of Exhibit
F executed and delivered by a Domestic Subsidiary that is a Material Subsidiary in accordance
with the provisions of Section 7.12.



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



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



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



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



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



     “L/C Obligations” means, as at any date of determination, the then Dollar Equivalent
of the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Creidt shall be determined in
accordance with Section 1.10. For all purposes of this Agreement, if on any date of determination a
Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in
the amount so remaining available to be drawn.



     “Lenders” means each of the Persons identified as a “Lender” on the signature pages
hereto and their successors and assigns and, as the context requires, includes the L/C Issuer and
the Swing Line Lender.



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



16









 





     “Letter of Credit” means (a) any standby letter of credit issued hereunder and (b) any
Existing Letter of Credit. Each Letter of Credit shall be a standby letter of credit. Letters of
Credit may be issued in Dollars or in an Alternative Currency.



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



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



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



     “Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) $100,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



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



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



     “Loan Documents” means this Agreement, each Note, each Letter of Credit, each Letter
of Credit Application, each Joinder Agreement, each Issuer Document, any agreement creating or
perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14 of this Agreement,
each Request for Credit Extension, each Compliance Certificate, the Administrative Agent Fee
Letter, each Designated Borrower Request and Assumption Agreement, each Designated Borrower Notice
and each other document, instrument or agreement from time to time executed by the Company or any
of its Subsidiaries or any Responsible Officer thereof and delivered in connection with this
Agreement.



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



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



     “London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.



     “Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01(b).



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, Properties, liabilities (actual or contingent) or
condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Loan Parties taken as a whole to perform their
obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to which it is a
party.



17









 





     “Material Subsidiary” means, as of any date of determination, any Subsidiary of the
Company that (i) has on such date Total Assets constituting ten percent (10%) or more of
Consolidated Total Assets or (ii) for the most recently ended four fiscal quarter period has
revenues constituting ten percent (10%) or more of the consolidated revenues of the Company and its
Subsidiaries for such period, as determined in accordance with Agreement Accounting Principles.



     “Maturity Date” means February 25, 2016.



     “MLPF&S” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, in its capacity as
joint lead arranger and joint book manager.



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



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Note” or “Notes” means the Revolving Notes and/or the Swing Line Note,
individually or collectively, as appropriate.



     “Note Purchase Agreement” means that certain Note Purchase Agreement dated as of May
12, 2010 by and among the Company and certain purchasers.



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



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



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



18









 





     “Outstanding Amount” means (i) with respect to any Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date; and (ii) with respect
to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving
effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount
available for drawing under Letters of Credit taking effect on such date.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance
with banking industry rules on interbank compensation, and (b) with respect to any amount
denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the amount with respect
to which such rate is being determined, would be
offered for such day by a branch or Affiliate of Bank of America in the applicable offshore
interbank market for such currency to major banks in such interbank market.



     “Participant” has the meaning specified in Section 11.06(d).



     “Participating Member State” means each state so described in any EMU Legislation.



     “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.



     “Pension Act” means the Pension Protection Act of 2006.



     “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412
of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 3004 and 305 of ERISA.



     “Pension Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by the Company and any ERISA
Affiliate and is either covered by Title IV of ERISA or is subject to minimum funding standards
under Section 412 of the Code.



     “Permitted Acquisition” means Investments consisting of an Acquisition by the Company
or any Subsidiary of the Company, provided that (i) the Property acquired (or the Property of the
Person acquired) in such Acquisition is used or useful in the same, similar or complementary lines
of business as the Company and its Subsidiaries were engaged in on the Closing Date (or any
reasonable adjacencies, extensions or expansions thereof), (ii) in the case of an Acquisition of
the Capital Stock of another Person, the board of directors (or other comparable governing body) of
such other Person shall have duly approved such Acquisition, (iii) after giving effect to any such
Acquisition on a Pro Forma Basis, the Loan Parties are in compliance with the financial covenants
set forth in Section 8.09 as of the most recent fiscal quarter for which the Company has delivered
financial statements pursuant to Section 7.01(a) or (b), (iv) the representations and warranties
made by the Loan Parties in any Loan Document shall be true and correct in all material respects at
and as if made as of the date of such Acquisition (after giving effect thereto) except to the
extent such representations and warranties expressly relate to an earlier date, (v) no Default or
Event of Default has occurred and is continuing or would result therefrom and (vi) if such
transaction involves the purchase of an interest in a partnership between the Company (or a
Subsidiary of



19









 







the Company) as a general partner and entities unaffiliated with the Company or such
Subsidiary as the other partners, such transaction shall be effected by having such equity interest
acquired by a corporate holding company directly or indirectly wholly-owned by the Company newly
formed for the sole purpose of effecting such transaction.



     “Permitted Investments” means, at any time, Investments by the Company or any of its
Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.02.



     “Permitted Liens” means, at any time, Liens in respect of Property of the Company or
any of its Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.01.



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



     “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of the Borrower or any ERISA Afffiliate or any
such Plan to which the Company or any ERISA Affiliate is required to contribute on behalf of any of
its employees.



     “Platform” has the meaning specified in Section 7.02.



     “Priority Indebtedness” means (without duplication), as of the date of any
determination thereof, the sum of (i) all unsecured Indebtedness of Subsidiaries (including all
Guarantees of Indebtedness of the Company but excluding (x) Indebtedness owing to the Company or
any other Subsidiary, (y) Indebtedness outstanding at any time such Person became a Subsidiary,
provided that such Indebtedness shall have not been incurred in contemplation of such person
becoming a Subsidiary, and (z) all Subsidiary Guarantees and all Indebtedness of any Subsidiary
which has also guaranteed the Obligations) and (ii) all Indebtedness of the Company and its
Subsidiaries secured by Liens other than Indebtedness secured by (x) Liens permitted by
subparagraphs (a) through (t), inclusive, of Section 8.01, or (y) Liens as to which the Company or
such Subsidiary has made, or caused to be made, effective provision whereby the Obligations are
equally or ratably secured with the other obligations thereby secured in accordance with Section
8.01.



     “Pro Forma Basis” means, for purposes of calculating the financial covenants set forth
in Section 8.09 (including for purposes of determining the Applicable Rate), that any Disposition,
Involuntary Disposition or Acquisition shall be deemed to have occurred as of the first day of the
most recent four fiscal quarter period preceding the date of such transaction for which the Company
has delivered financial statements pursuant to Section 7.01(a) or (b). In connection with the
foregoing, (a) with respect to any Disposition or Involuntary Disposition, (i) income statement and
cash flow statement items (whether positive or negative) attributable to the Property disposed of
shall be excluded to the extent relating to any period occurring prior to the date of such
transaction and (ii) Indebtedness which is retired shall be excluded and deemed to have been
retired as of the first day of the applicable period and (b) with respect to any Acquisition (i)
income statement items (whether positive or negative) attributable to the Person or Property
acquired shall be included to the extent relating to any period applicable in such calculations to
the extent (A) such items are not otherwise included in such income statement items for the Company
and its Subsidiaries in accordance with Agreement Accounting Principles or in accordance with any
defined terms set forth in Section 1.01 and (B) such items are supported by audited financial
statements or other information reasonably satisfactory to the Administrative Agent and (ii) any
Indebtedness incurred or assumed by the Company or any Subsidiary (including the Person or Property
acquired) in connection with such transaction and any Indebtedness of the Person or Property
acquired which is not retired in connection with such transaction (A) shall be deemed to have been
incurred as of the first day of the applicable period and (B) if such Indebtedness has



20









 







a floating
or formula rate, shall have an implied rate of interest for the applicable period for purposes of
this definition determined by utilizing the rate which is or would be in effect with respect to
such Indebtedness as at the relevant date of determination.



     “Pro Rata Share” means, as to each Lender at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is the amount of the
Revolving Commitment of such Lender at such time and the denominator of which is the amount of the
Aggregate Revolving Commitments at such time, subject to adjustment as provided in Section 2.15;
provided that if the commitment of each Lender to make Revolving Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02, then the
Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender
immediately prior to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set forth opposite the
name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.



     “Property” means any interest of any kind in any property or asset, whether real,
personal or mixed, or tangible or intangible.



     “Register” has the meaning specified in Section 11.06(c).



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



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



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



     “Required Lenders” means, at any time, Lenders holding in the aggregate more than
fifty percent (50%) of (a) the Revolving Commitments or (b) if the Revolving Commitments have been
terminated, the outstanding Loans, L/C Obligations, Swing Line Loans and participations therein.
The Revolving Commitments of, and the outstanding Loans held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required Lenders.



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



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



     “Revaluation Date” means (a) with respect to any Loan denominated in an Alternative
Currency, each of the following: (i) each date of a Borrowing of a Eurocurrency Rate Loan
denominated in an



21









 







Alternative Currency, (ii) each date of a continuation of a Eurocurrency Rate
Loan denominated in such Alternative Currency pursuant to Section 2.02, and (iii) such additional
dates as the Administrative Agent shall determine or the Required Lenders shall require; and (b)
with respect to any Letter of Credit denominated in an Alternative Currency, each of the following:
(i) each date of issuance of a Letter of Credit denominated in such Alternative Currency, (ii)
each date of an amendment of any such Letter of Credit having the effect of increasing the amount
thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C
Issuer under any Letter of Credit denominated in such Alternative Currency, and (iv) such
additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required
Lenders shall require.



     “Revolving Loan” has the meaning specified in Section 2.01.



     “Revolving Note” has the meaning specified in Section 2.11(a).



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



     “Sale and Leaseback Transaction” means, with respect to the Company or any Subsidiary,
any arrangement, directly or indirectly, with any person whereby the Company or such Subsidiary
shall sell or transfer any property, real or personal, used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property being sold or
transferred.



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



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



     “Securitization Transaction” means any financing transaction or series of financing
transactions (including factoring arrangements) pursuant to which the Company or any Subsidiary may
sell, convey or otherwise transfer, or grant a security interest in, accounts, payments,
receivables, rights to future lease payments or residuals or similar rights to payment to a special
purpose subsidiary or affiliate of the Company.



     “Solvent” or “Solvency” means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the ordinary course of business, (b) such
Person does not intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c)
such Person is not engaged in a business or a transaction, and is not about to engage in a business
or a transaction, for which such Person’s Property would constitute unreasonably small capital
after giving due consideration to the prevailing practice in the industry in which such Person is
engaged or is to engage, (d) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent liabilities, of such Person
and (e) the present fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its debts as they become
absolute and matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities



22









 







will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.



     “Special Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic Cooperation and Development
at such time located in North America or Europe.



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



     “Sterling” and “£” means the lawful currency of the United Kingdom.



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



     “Subsidiary Guarantors” means each Domestic Subsidiary of the Company that is a
Material Subsidiary and each other Person that joins as a Guarantor pursuant to Section 7.12,
together with their successors and permitted assigns.



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



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap



23









 







Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



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



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



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



     “Swing Line Note” has the meaning specified in Section 2.11(a).



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



     “Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement
is considered borrowed money indebtedness for tax purposes but is classified as an operating lease
or does not otherwise appear on the balance sheet under Agreement Accounting Principles.



     “TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.



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



     “Threshold Amount” means $50,000,000.



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



     “Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overdraft, credit or debit card,
funds transfer, automated clearinghouse, zero balance accounts, returned check concentration,
controlled disbursement, lockbox, account reconciliation and reporting and trade finance services
and other cash management services.



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



     “UK Borrower” means Teledyne Limited, an English limited company and/or any other
Designated Borrower organized under the laws of the United Kingdom.



     “United States” and “U.S.” mean the United States of America.




24












 





     “United States” and “U.S.” mean the United States of America.



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



     “Voting Stock” means, with respect to any Person, Capital Stock issued by such Person,
the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person, even though the
right so to vote has been suspended by the happening of such a contingency.



     “Wholly Owned Subsidiary” means any Person 100% of whose Capital Stock is at the time
owned by the Company directly or indirectly through other Persons 100% of whose Capital Stock is at
the time owned, directly or indirectly, by the Company.


1.02 Other Interpretive Provisions.




     With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:




     (a) The meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.




(b) (i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar
import when used in any Loan Document shall refer to such Loan Document as a whole
and not to any particular provision thereof.




     (ii) Article, Section, Exhibit and Schedule references are to the Loan Document
in which such reference appears.




     (iii) The term “including” is by way of example and not limitation.




     (iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings,
however evidenced, whether in physical or electronic form.




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




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


1.03 Accounting Terms.





     (a) Except as otherwise specifically prescribed herein, all accounting terms not
specifically or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements; provided, however, that
calculations of Attributable Indebtedness under any Synthetic Lease or the implied interest
component of any Synthetic Lease shall be made by the Company in accordance with accepted
financial practice and consistent with the terms of such Synthetic Lease.



25









 






     (b) Notwithstanding the above, the parties hereto acknowledge and agree that all
calculations of the financial covenants in Section 8.09 (and for purposes of determining the
Applicable Rate) shall be made on a Pro Forma Basis.



1.04 Exchange Rates; Currency Equivalents.





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




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



1.05 Additional Alternative Currencies.





     (a) The Company may from time to time request that Eurocurrency Rate Loans be made
and/or Letters of Credit be issued in a currency other than those specifically listed in the
definition of “Alternative Currency”; provided that such requested currency is a lawful
currency (other than Dollars) that is readily available and freely transferable and
convertible into Dollars. In the case of any such request with respect to the making of
Eurocurrency Rate Loans, such request shall be subject to the approval of the Administrative
Agent and the Lenders; and in the case of any such request with respect to the issuance of
Letters of Credit, such request shall be subject to the approval of the Administrative Agent
and the L/C Issuer.




     (b) Any such request shall be made to the Administrative Agent not later than 11:00
a.m., 20 Business Days prior to the date of the desired Credit Extension (or such other time
or date as may be agreed by the Administrative Agent and, in the case of any such request
pertaining to Letters of Credit, the L/C Issuer, in its or their sole discretion). In the
case of any such request pertaining to Eurocurrency Rate Loans, the Administrative Agent
shall promptly notify each Lender thereof; and in the case of any such request pertaining to
Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer thereof.
Each Lender (in the case of any such request pertaining to Eurocurrency Rate Loans) or the
L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the
Administrative Agent, not later than 11:00 a.m., ten Business Days after receipt of such
request whether it consents, in its sole discretion, to the making of Eurocurrency Rate
Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.



26









 






     (c) Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such
request within the time period specified in the preceding sentence shall be deemed to be a
refusal by such Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate
Loans to be made or Letters of Credit to be issued in such requested currency. If the
Administrative Agent and all the Lenders consent to making Eurocurrency Rate Loans in such
requested currency, the Administrative Agent shall so notify the Company and such currency
shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for
purposes of any Borrowings of Eurocurrency Rate Loans; and if the Administrative Agent and
the L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the
Administrative Agent shall so notify the Company and such currency shall thereupon be deemed
for all purposes to be an Alternative Currency hereunder for purposes of any Letter of
Credit issuances. If the Administrative Agent shall fail to obtain consent to any request
for an additional currency under this Section 1.05, the Administrative Agent shall promptly
so notify the Company.



1.06 Change of Currency.





     (a) Each obligation of the Borrowers to make a payment denominated in the national
currency unit of any member state of the European Union that adopts the Euro as its lawful
currency after the date hereof shall be redenominated into Euro at the time of such adoption
(in accordance with the EMU Legislation). If, in relation to the currency of any such
member state, the basis of accrual of interest expressed in this Agreement in respect of
that currency shall be inconsistent with any convention or practice in the London interbank
market for the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on which such
member state adopts the Euro as its lawful currency; provided that if any Borrowing in the
currency of such member state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Borrowing, at the end of the then
current Interest Period.




     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to
reflect the adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.




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



1.07 Rounding.




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



1.08 References to Agreements and Laws.




     Unless otherwise expressly provided herein, (a) references to Organization Documents,
agreements (including the Loan Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions, supplements and
other modifications



27









 




are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such
Law.




1.09 Times of Day.




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



1.10 Letter of Credit Amounts.




     Unless otherwise specified, all references herein to the amount of a Letter of Credit at any
time shall be deemed to mean the Dollar Equivalent of the maximum face amount of such Letter of
Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the
Issuer Document related thereto, whether or not such maximum face amount is in effect at such time.



ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 Revolving Loans.




     Subject to the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Revolving Loan”) to the Borrowers in Dollars or in one or more
Alternative Currencies from time to time on any Business Day during the Availability Period in an
aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving
Commitment; provided, however, that after giving effect to any Borrowing of
Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments, (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro
Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Revolving Commitment and (iii) the aggregate Outstanding Amount of all Loans and Letters of Credit
denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit. Each
Lender may, at its option, make any Revolving Loan available to any Designated Borrower that is a
Foreign Subsidiary by causing any foreign or domestic branch or Affiliate of such Lender to make
such Revolving Loan; provided that any exercise of such option shall not (i) affect the obligation
of such Designated Borrower to repay such Revolving Loan in accordance with the terms of this
Agreement or (ii) cause the Borrowers to incur any expense (including any additional taxes) they
would not otherwise incur. Within the limits of each Lender’s Revolving Commitment, and subject to
the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay
under Section 2.05, and reborrow under this Section 2.01. Revolving Loans may be Base Rate Loans
or Eurocurrency Rate Loans, as further provided herein.



2.02 Borrowings, Conversions and Continuations of Loans.





     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurocurrency Rate Loans shall be made upon the Company’s irrevocable notice
to the Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 10:00 a.m. (i) three Business Days prior
to the requested date of any Borrowing of, conversion to or continuation of, Eurocurrency
Rate Loans or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base
Rate Loans, (ii) four Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate
Loans denominated in Alternative Currencies, and (iii) on the requested date of any
Borrowing of Base Rate Loans. Each telephonic notice by the Company pursuant to this
Section 2.02(a) must be



28









 







confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Company. Each Borrowing
of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount
of $3,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in
Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in
a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each
Loan Notice (whether telephonic or written) shall specify (i) whether the Company is
requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount
of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Loans are to be converted, (v) if applicable, the duration of the Interest
Period with respect thereto, (vi) the currency of the Revolving Loans to be borrowed, and
(vii) if applicable, the Designated Borrower. If the Company fails to specify a currency in
a Loan Notice requesting a Borrowing, then the Loans so requested shall be made in Dollars.
If the Company fails to specify a Type of a Loan in a Loan Notice or if the Company fails to
give a timely notice requesting a conversion or continuation, then the applicable Loans
shall be made as, or converted to, Base Rate Loans; provided, however, that
in the case of a failure to timely request a continuation of Revolving Loans denominated in
an Alternative Currency, such Revolving Loans shall be continued as Eurocurrency Rate Loans
in their original currency with an Interest Period of one month. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurocurrency Rate Loans. If the Company
requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any
Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month. No Revolving Loan may be converted into or continued as a
Revolving Loan denominated in a different currency, but instead must be prepaid in the
original currency of such Revolving Loan and reborrowed in the other currency.




     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify
each Lender of the amount (and currency) of its Pro Rata Share of the applicable Loans, and
if no timely notice of a conversion or continuation is provided by the Company, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans or continuation of Loans denominated in a currency other than Dollars, in
each case as described in the preceding subsection. In the case of a Borrowing, each Lender
shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at
the Administrative Agent’s Office for the applicable currency not later than 11:00 a.m. in
the case of any Loan denominated in Dollars, and not later than the Applicable Time
specified by the Administrative Agent in the case of any Loan in an Alternative Currency in
each case on the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial
Credit Extension, Section 5.01), the Administrative Agent shall make all funds so received
available to the Company or the applicable Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of such Borrower on the books of
Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each
case in accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Company; provided, however, that if, on the date
of a Borrowing of Revolving Loans, there are L/C Borrowings outstanding, then the proceeds
of such Borrowing shall be applied, first, to the payment in full of any such L/C
Borrowings, and second, to the applicable Borrower as provided above.




     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of the Interest Period for such Eurocurrency Rate



29









 







Loan. During the existence of a Default or Event of Default, no Loans may be requested as,
converted to or continued as Eurocurrency Rate Loans (whether in Dollars or any Alternative
Currency) without the consent of the Required Lenders, and the Required Lenders may demand
that any or all of the then outstanding Eurocurrency Rate Loans denominated in an
Alternative Currency be prepaid, or redenominated into Dollars in the amount of the Dollar
Equivalent thereof, on the last day of the then current Interest Period with respect
thereto.




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




     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to
the other, and all continuations of Loans as the same Type, there shall not be more than 10
Interest Periods in effect with respect to the Revolving Loans.




     (f) The Company may at any time and from time to time, upon prior written notice by the
Company to the Administrative Agent, increase the Aggregate Revolving Commitments by up to
ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000) with additional Revolving Commitments from
any existing Lender or new Revolving Commitments from any other Person selected by the
Company and approved by the Administrative Agent and the L/C Issuer (not to be unreasonably
withheld); provided that:




     (i) any such increase shall be in a minimum principal amount of $10 million and
in integral multiples of $5 million in excess thereof;




     (ii) no Default or Event of Default shall be continuing at the time of any such
increase;




     (iii) no existing Lender shall be under any obligation to increase its
Revolving Commitment and any such decision whether to increase its Revolving
Commitment shall be in such Lender’s sole and absolute discretion;




     (iv) (A) any new Lender shall join this Agreement by executing such joinder
documents as customarily and reasonably required by the Administrative Agent and/or
(B) any existing Lender electing to increase its Revolving Commitment shall have
executed a commitment agreement reasonably satisfactory to the Administrative Agent;
and




     (v) as a condition precedent to such increase, the Company shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the date of such
increase (in sufficient copies for each Lender) signed by a Responsible Officer of
such Loan Party (A) certifying and attaching the resolutions adopted by such Loan
Party approving or consenting to such increase and (B) in the case of any Borrower,
certifying that, before and after giving effect to such increase, (1) the
representations and warranties contained in Article VI and the other Loan
Documents are true and correct on and as of the date of such increase, except to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they are true and correct as of such



30









 







earlier date, and except that for purposes of this Section 2.02(f), the
representations and warranties contained in subsections (a) and (b) of Section 6.05
shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 7.01, and (2) no Default or Event of Default
exists.



     The Borrowers shall prepay any Loans outstanding on the date of any such increase (and pay any
additional amounts required pursuant to Section 3.05) to the extent necessary to keep the
outstanding Loans ratable with any revised Revolving Commitments arising from any nonratable
increase in the Commitments under this Section 2.02(f). In connection with any such increase in
the Aggregate Revolving Commitments, the Letter of Credit Sublimit shall be increased by the same
amount and Schedule 2.01 shall be revised by the Administrative Agent to reflect the new Revolving
Commitments and distributed to the Lenders.



2.03 Letters of Credit.





     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer
agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.03, (1) from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit
in Dollars or in one or more Alternative Currencies for the account of the Company
or any of its Subsidiaries, and to amend or extend Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of the Company or its Subsidiaries and any
drawings thereunder; provided that after giving effect to any L/C Credit Extension
with respect to any Letter of Credit, (w) the Total Revolving Outstandings shall not
exceed the Aggregate Revolving Commitments, (x) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the
Letter of Credit Sublimit and (z) the aggregate Outstanding Amount of the L/C
Obligations denominated in an Alternative Currency plus the aggregate Outstanding
Amount of Loans denominated in an Alternative Currency shall not exceed the
Alternative Currency Sublimit. Each request by the Company for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation by the
Company that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, the Company’s ability to obtain Letters
of Credit shall be fully revolving, and accordingly the Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. Furthermore, each Lender
acknowledges and confirms that it has a participation interest in the liability of
the L/C Issuer under each Existing Letter of Credit in a percentage equal to its Pro
Rata Share of Revolving Loans. The Company’s reimbursement obligations in respect
of each Existing Letter of Credit, and each Lender’s obligations in connection
therewith, shall be governed by the terms of this Agreement.




     (ii) The L/C Issuer shall not issue any Letter of Credit if the expiry date of
such requested Letter of Credit would occur after the Letter of Credit Expiration
Date, unless all the Lenders have approved such expiry date.



31









 






     (iii) The L/C Issuer shall be under no obligation to issue any Letter of Credit
if:




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




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




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




     (D) a default of any Lender’s obligations to fund under Section 2.03(c)
exists, unless the L/C Issuer has entered into satisfactory arrangements
with the Company or such Lender to eliminate the L/C Issuer’s risk with
respect to such Lender;




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




     (F) the L/C Issuer does not as of the issuance date of such requested
Letter of Credit issue Letters of Credit in the requested currency; or




     (G) any Lender is at that time a Defaulting Lender, unless the L/C
Issuer has entered into arrangements, including the delivery of Cash
Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the
Company or such Lender to eliminate the L/C Issuer’s actual or potential
Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect
to the Defaulting Lender arising from either the Letter of Credit then
proposed to be issued or that Letter of Credit and all other L/C Obligations
as to which the L/C Issuer has actual or potential Fronting Exposure, as it
may elect in its sole discretion.




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




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit
if (A) the L/C Issuer would have no obligation at such time to issue such Letter of



32









 







Credit in its amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter of Credit.




     (vi) The L/C Issuer shall be under no obligation to issue or amend any Letter
of Credit if the L/C Issuer has received written notice from any Lender, the
Administrative Agent or any Loan Party, on or prior to the Business Day prior to the
requested date of issuance or amendment of such Letter of Credit, that one or more
applicable conditions contained in Article V shall not then be satisfied.




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




     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal
Letters of Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of the Company delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Officer of the Company. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not
later than 10:00 a.m. at least two (2) Business Days (or such later date and time as
the Administrative Agent and the L/C Issuer may agree in a particular instance in
its sole discretion) prior to the proposed issuance date or date of amendment, as
the case may be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount and requested
currency thereof and in the absence of specification of currency shall be deemed a
request for a Letter of Credit denominated in Dollars; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text
of any certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may reasonably require. In
the case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the nature
of the proposed amendment; and (D) such other matters as the L/C Issuer may
reasonably require. Additionally, the Company shall furnish to the L/C Issuer and
the Administrative Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any Issuer Documents, as
the L/C Issuer or the Administrative Agent may reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer
will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from
the



33









 







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




     (iii) If the Company so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue
a Letter of Credit that has automatic extension provisions (each, an
“Auto-Extension Letter of Credit”); provided that any such Auto-Extension
Letter of Credit must permit the L/C Issuer to prevent any such extension by giving
prior notice to the beneficiary thereof not later than a day (the “Non-Extension
Notice Date”) to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by the L/C Issuer, the Company shall not be required to
make a specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the extension of such
Letter of Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation at such time to issue such Letter of Credit
in its revised (as extended) form under the terms hereof (by reason of the
provisions clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or before the day that
is five Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such
extension or (2) from the Administrative Agent, any Lender or any Loan Party that
one or more of the applicable conditions specified in Section 5.02 is not then
satisfied, and in each such case directing the L/C Issuer not to permit such
extension.




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




     (c) Drawings and Reimbursements; Funding of Participations.




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



34









 







Issuer in Dollars. In the case of any such reimbursement in Dollars of a
drawing under a Letter of Credit denominated in an Alternative Currency, the L/C
Issuer shall notify the Company of the Dollar Equivalent of the amount of the
drawing promptly following the determination thereof. Not later than (i) 12:00 p.m.
on the date of any payment by the L/C Issuer under a Letter of Credit to be
reimbursed in Dollars, if the L/C Issuer delivers notice of such payment by 10:00
a.m. on such day, or, if notice of any such payment is made after 10:00 a.m., not
later than 10:00 a.m. the next succeeding Business Day, or (ii) the Applicable Time
on the date of any payment by the L/C Issuer under a Letter of Credit to be
reimbursed in an Alternative Currency if the L/C Issuer delivers notice of such
payment two hours prior to the Applicable Time on such day, or, if notice of any
such payment is made later than two hours prior to the Applicable Time, not later
than 10:00 a.m. the next succeeding Business Day (each such date, an “Honor
Date”), the Company shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing and in the applicable
currency. If the Company fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the amount
of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar
Equivalent thereof in the case of a Letter of Credit denominated in Alternative
Currency) (the “Unreimbursed Amount”), and the amount of such Lender’s Pro
Rata Share thereof. In such event, the Company shall be deemed to have requested a
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the Aggregate Revolving Commitments and the conditions
set forth in Section 5.02 (other than the delivery of a Loan Notice). Any notice
given by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.




     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral provided for
this purpose) to the Administrative Agent for the account of the L/C Issuer in
Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an
amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 12:00
p.m. on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to the Company
in such amount. The Administrative Agent shall remit the funds so received to the
L/C Issuer in Dollars.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot
be satisfied or for any other reason, the Company shall be deemed to have incurred
from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In such
event, each Lender’s payment to the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from such
Lender in satisfaction of its participation obligation under this Section 2.03.



35









 






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




     (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated
by this Section 2.03(c), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C Issuer, the
Company or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether
or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 5.02 (other than delivery by the
Company of a Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Company to reimburse the L/C Issuer for the
amount of any payment made by the L/C Issuer under any Letter of Credit, together
with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the
account of the L/C Issuer any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the greater
of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with
banking industry rules on interbank compensation. A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest error.




     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of
Credit and has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.03(c), if the Administrative Agent receives for
the account of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Company or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative Agent),
the Administrative Agent will distribute to such Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lender’s L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of
the circumstances described in Section 11.06 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal
to the Federal Funds Rate



36









 







from time to time in effect. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this
Agreement.




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




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




     (ii) the existence of any claim, counterclaim, set-off, defense or other right
that the Company may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;




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




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




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




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




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




     (f) Role of L/C Issuer. Each Lender and the Company agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document (other than to determine that such document appears on its face to be in compliance
with the terms of



37









 







such Letter of Credit) or the authority of the Person executing or delivering any such
document. None of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Issuer Document. The Company hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Company’s pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties, nor any correspondent,
participant or assignee of the L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the Company
may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Company, to
the extent, but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Company which the Company proves were caused by the L/C Issuer’s
willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that
appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any
reason.




     (g) Cash Collateral. If the Administrative Agent notifies the Company at any
time that the Outstanding Amount of all L/C Obligations at such time exceeds 105% of the
Letter of Credit Sublimit then in effect, then, within two Business Days after receipt of
such notice, the Company shall Cash Collateralize the L/C Obligations in an amount equal to
the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of
Credit Sublimit.




     (h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C
Issuer and the Company when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter
of Credit.




     (i) Letter of Credit Fees. The Company shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share in Dollars a Letter of
Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the
Applicable Rate times the Dollar Equivalent of the daily maximum amount available to be
drawn under such Letter of Credit; provided, however, any Letter of Credit
Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of
Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to
the L/C Issuer pursuant to this Section 2.03 shall be payable, to the maximum extent
permitted by applicable Law, first, to the other Lenders in accordance with the upward
adjustments in their respective Pro Rata Shares allocable to such Letter of Credit pursuant
to Section 2.15(a)(iv), second, to the Borrowers to the extent of any Cash Collateral
provided by the Borrowers in respect of Letters of Credit pursuant to the second sentence of
Section 2.14(a) and third, the balance of such fee, if any, payable to the L/C Issuer for
its own account. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.10. Letter of



38









 







Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable
on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on
the Letter of Credit Expiration Date and thereafter on demand. If there is any change in
the Applicable Rate during any quarter, the daily amount available to be drawn under each
Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect. Notwithstanding
anything to the contrary contained herein, upon the request of the Required Lenders while
any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.




     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
The Company shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting
fee with respect to each Letter of Credit, at the rate per annum specified in the
Administrative Agent Fee Letter, computed on the actual daily maximum amount available to be
drawn under such Letter of Credit (whether or not such maximum amount is then in effect
under such Letter of Credit), due and payable quarterly in arrears on the first Business Day
after the end of each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit and on the Letter of Credit
Expiration Date. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.10. In addition, the Company shall pay directly to the L/C Issuer for its own
account in Dollars the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit
as from time to time in effect. Such customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.




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




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



2.04 Swing Line Loans.





     (a) Swing Line Facility. Subject to the terms and conditions set forth herein,
the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in
this Section 2.04, may in its sole discretion make loans (each such loan, a “Swing Line
Loan”) to the Company in Dollars from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding the amount
of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Pro Rata Share of the Outstanding Amount of Revolving Loans and L/C
Obligations of the Swing Line Lender in its capacity as a Lender of Revolving Loans, may
exceed the amount of such Lender’s Revolving Commitment; provided, however,
that after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall
not exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, and
provided, further, that the Company shall not use the proceeds of any Swing



39









 







Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Company may borrow under this
Section 2.04, prepay under Section 2.05, and reborrow under this Section
2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan
in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such
Swing Line Loan.




     (b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made
upon the Company’s irrevocable notice to the Swing Line Lender and the Administrative Agent,
which may be given by telephone. Each such notice must be received by the Swing Line Lender
and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and
shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of
$500,000 and integral multiples of $100,000 in excess thereof, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer
of the Company. Promptly after receipt by the Swing Line Lender of any telephonic Swing
Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such Swing Line
Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request
of any Lender) prior to 2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans
(A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the
limitations set forth in the proviso to the first sentence of Section 2.04(a), or (B) that
one or more of the applicable conditions specified in Article V is not then
satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make
the amount of its Swing Line Loan available to the Company.




     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may
request, on behalf of the Company (which hereby irrevocably requests and authorizes
the Swing Line Lender to so request on its behalf), that each Lender make a Base
Rate Loan in an amount equal to such Lender’s Pro Rata Share of the amount of Swing
Line Loans then outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Loan Notice for purposes hereof) and in accordance
with the requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Aggregate Revolving Commitments and the conditions set
forth in Section 5.02. The Swing Line Lender shall furnish the Company with a copy
of the applicable Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Pro Rata Share
of the amount specified in such Loan Notice available to the Administrative Agent in
Same Day Funds (and the Administrative Agent may apply Cash Collateral available
with respect to the applicable Swing Line Loan) for the account of the Swing Line
Lender at the Administrative Agent’s Office for Dollar denominated payments not
later than 10:00 a.m. on the day specified in such Loan Notice, whereupon, subject
to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to



40









 







the Company in such amount. The Administrative Agent shall remit the funds so
received to the Swing Line Lender.




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




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




     (iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right that such Lender
may have against the Swing Line Lender, the Company or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving
Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in
Section 5.02. No such purchase or funding of risk participations shall relieve or
otherwise impair the obligation of the Company to repay Swing Line Loans, together
with interest as provided herein.




     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation
in a Swing Line Loan, if the Swing Line Lender receives any payment on account of
such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro
Rata Share of such payment (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender’s risk
participation was funded) in the same funds as those received by the Swing Line
Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal
or interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the circumstances described in Section 11.06 (including pursuant
to any settlement entered into by the Swing Line Lender in its discretion), each
Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of
the Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is



41









 







returned, at a rate per annum equal to the applicable Overnight Rate. The
Administrative Agent will make such demand upon the request of the Swing Line
Lender. The obligations of the Lenders under this clause shall survive the payment
in full of the Obligations and the termination of this Agreement.




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




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



2.05 Prepayments.





     (a) Voluntary Prepayments of Loans.




     (i) Revolving Loans. Each Borrower may, upon notice from the Company
to the Administrative Agent, at any time or from time to time voluntarily prepay
Revolving Loans in whole or in part without premium or penalty; provided that (A)
such notice must be received by the Administrative Agent not later than 10:00 a.m.
(1) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate
Loans, (2) four (4) Business Days (or five, in the case of prepayment of Loans
denominated in Special Notice Currencies) prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Alternative Currencies and (3) on the date of
prepayment of Base Rate Loans; (B) any such prepayment of Eurocurrency Rate Loans
denominated in Dollars shall be in a principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof (or, if less, the entire principal amount
thereof then outstanding); (C) any prepayment of Eurocurrency Rate Loans denominated
in Alternative Currencies shall be in a minimum principal amount of $1,000,000 or a
whole multiple of $100,000 in excess thereof (or, if less, the entire principal
amount thereof then outstanding) and (D) any prepayment of Base Rate Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
(or, if less, the entire principal amount thereof then outstanding). Each such
notice shall specify the date and amount of such prepayment and the Type(s) of Loans
to be prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of
such prepayment. If such notice is given by the Company, the applicable Borrower
shall make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein. Any prepayment of a Eurocurrency
Rate Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05. Subject to
Section 2.15, each such prepayment shall be applied to the Loans of the Lenders in
accordance with their respective Pro Rata Shares.




     (ii) Swing Line Loans. The Company may, upon notice to the Swing Line
Lender (with a copy to the Administrative Agent), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(ii) any



42









 







such prepayment shall be in a minimum principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof (or, if less, the entire principal thereof
then outstanding). Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due and payable
on the date specified therein.




     (b) Mandatory Prepayments of Loans.




     (i) Revolving Commitments. If the Administrative Agent notifies the
Company at any time that the Total Revolving Outstandings at such time exceed an
amount equal to 105% of the Aggregate Revolving Commitments then in effect, then,
within two (2) Business Days after receipt of such notice, the Borrowers shall
prepay Loans and/or the Company shall Cash Collateralize the L/C Obligations in an
aggregate amount sufficient to reduce such Outstanding Amount as of such date of
payment to an amount not to exceed 100% of the Aggregate Revolving Commitments then
in effect; provided, however, that, subject to the provisions of Section 2.03(g),
the Company shall not be required to Cash Collateralize the L/C Obligations pursuant
to this Section 2.05(c) unless after the prepayment in full of the Loans the Total
Outstandings exceed the Aggregate Revolving Commitments then in effect.




     (ii) Application of Mandatory Prepayments. All amounts required to be
paid pursuant to Section 2.05(b)(i) shall be applied to Revolving Loans and Swing
Line Loans and (after all Revolving Loans and all Swing Line Loans have been repaid)
to Cash Collateralize L/C Obligations. Within the parameters of the applications
set forth above, prepayments shall be applied first to Base Rate Loans and then to
Eurocurrency Rate Loans in direct order of Interest Period maturities. All
prepayments under this Section 2.05(b) shall be subject to Section 3.05, but
otherwise without premium or penalty, and shall be accompanied by interest on the
principal amount prepaid through the date of prepayment.




     (c) Exchange Rate Fluctuations. If the Administrative Agent notifies the
Company at any time that the Outstanding Amount of all Loans denominated in
Alternative Currencies at such time exceeds an amount equal to 105% of the
Alternative Currency Sublimit then in effect, then, within two (2) Business Days
after receipt of such notice, the Borrowers shall prepay Loans in an aggregate
amount sufficient to reduce such Outstanding Amount as of such date of payment to an
amount not to exceed 100% of the Alternative Currency Sublimit then in effect. The
Administrative Agent may, at any time and from time to time after the initial
deposit of such Cash Collateral, request that additional Cash Collateral be provided
in order to protect against the results of further exchange rate fluctuations.



2.06 Termination or Reduction of Aggregate Revolving Commitments.




     The Company may, upon notice to the Administrative Agent, terminate the Aggregate Revolving
Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments to an
amount not less than the Outstanding Amount of Revolving Loans, Swing Line Loans and L/C
Obligations; provided that (i) any such notice shall be received by the Administrative Agent not
later than 9:00 a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of
$1,000,000 in excess



43









 




thereof, (iii) if, after giving effect to any reduction of the Aggregate Revolving Commitments, the
Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving
Commitments, such sublimit shall be automatically reduced by the amount of such excess and (iv) if,
after giving effect to any reduction of the Aggregate Revolving Commitments, the Alternative
Currency Sublimit exceeds the amount of the Aggregate Revolving Commitments, such sublimit shall be
automatically reduced by the amount of such excess. The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate Revolving Commitments.
The amount of any such Aggregate Revolving Commitment reduction shall not be applied to the
Alternative Currency Sublimit or the Letter of Credit Sublimit unless otherwise specified by the
Company.  Any reduction of the Aggregate Revolving Commitments shall be applied to the
Revolving Commitment of each Lender according to its Pro Rata Share. All fees accrued with respect
thereto until the effective date of any termination of the Aggregate Revolving Commitments shall be
paid on the effective date of such termination.




2.07 Repayment of Loans.





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




     (b) Swing Line Loans. The Company shall repay each Swing Line Loan on the
earlier to occur of (i) demand by the Swing Line Lender and (ii) the Maturity Date.



2.08 Interest.





     (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan
shall bear interest on the outstanding principal amount thereof for each Interest Period at
a rate per annum equal to the sum of (A) the Eurocurrency Rate for such Interest Period plus
(B) the Applicable Rate plus (in the case of a Eurocurrency Rate Loan of any Lender which is
lent from a lending office in the United Kingdom or a Participating Member State) the
Mandatory Cost; (ii) each Base Rate Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate.




     (b) Upon the occurrence and during the continuation of an Event of Default, the
Borrowers shall pay interest on the principal amount of all outstanding Obligations at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.




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



44









 





2.09 Fees.




     In addition to certain fees described in subsections (i) and (j) of Section 2.03:




     (a) Facility Fee. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share, a facility fee equal to the
Applicable Rate times the actual daily amount of the Aggregate Revolving Commitments (or, if
the Aggregate Revolving Commitments have terminated, on the Outstanding Amount of all
Revolving Loans, Swing Line Loans and L/C Obligations), regardless of usage, subject to
adjustment as provided in Section 2.15. The facility fee shall accrue at all times during
the Availability Period (and thereafter so long as any Revolving Loans, Swing Line Loans or
L/C Obligations remain outstanding), including at any time during which one or more of the
conditions in Article V is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the Closing Date, and on the Maturity Date (and, if
applicable, thereafter on demand). The facility fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.




     (b) Administrative Agent Fee Letter. The Company shall pay to the
Administrative Agent for its own account the fees in the amounts and at the times specified
in the Administrative Agent Fee Letter. Such fees shall be fully earned when paid and shall
be non-refundable for any reason whatsoever; provided, however, that the
Company shall be entitled to receive from the Administrative Agent the prorated amount of
the administrative agent fee for any applicable year if the Administrative Agent should
voluntarily resign in such year.



2.10 Computation of Interest and Fees.





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




     (b) If, as a result of any restatement of or other adjustment to the financial
statements of the Company or for any other reason, the Company or the Lenders determine that
(i) the Consolidated Leverage Ratio as calculated by the Company as of any applicable date
was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have
resulted in higher pricing for such period, each Borrower shall, without duplication,
immediately and retroactively be obligated to pay to the Administrative Agent for the
account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand
by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the United
States, automatically and without further action by the Administrative Agent, any Lender or
the L/C Issuer), an amount equal to the excess of the amount of interest and fees that
should have been paid for such period over the amount of



45









 







interest and fees actually paid for such period. This paragraph shall not limit the rights
of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section
2.03(c)(iii), 2.03(i) or 2.08(b) or under Article IX. The Company’s obligations
under this paragraph shall survive the termination of the Commitments of all of the Lenders
and the repayment of all other Obligations hereunder.




For the purpose of complying with the Interest Act (Canada), it is expressly stated that
where interest is calculated pursuant hereto at a rate based on a 360 or 365 day period, the
yearly rate or percentage of interest to which such rate is equivalent is such rate
multiplied by the actual number of days in the year (365 or 366, as the case may be) divided
by 360 or 365, as the case may be.



2.11 Evidence of Debt.





     (a) The Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent
and each Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrowers hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records maintained by
any Lender and the accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall control in the absence
of manifest error. Upon the request of any Lender to a Borrower made through the
Administrative Agent, such Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a promissory note, which shall evidence such Lender’s Loans in
addition to such accounts or records. Each such promissory note shall (i) in the case of
Revolving Loans, be in the form of Exhibit C-1 (a “Revolving Note”) and (ii)
in the case of Swing Line Loans, be in the form of Exhibit C-2 (a “Swing Line
Note”). Each Lender may attach schedules to its Note and endorse thereon the date, Type
(if applicable), amount and maturity of its Loans and payments with respect thereto.




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



2.12 Payments Generally; Administrative Agent’s Clawback.





     (a) General. All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein and except with respect to principal of and interest on
Loans denominated in an Alternative Currency, all payments by the Borrowers hereunder shall
be made to the Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent’s Office in Dollars and in immediately
available funds not later than 11:00 a.m. on the date specified herein. Except as otherwise
expressly provided herein, all payments by the Borrowers hereunder with respect to principal
and interest on Loans denominated in an Alternative Currency shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is
owed, at the applicable



46









 







Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not
later than the Applicable Time specified by the Administrative Agent on the dates specified
herein. Without limiting the generality of the foregoing, the Administrative Agent may
require that any payments due under this Agreement be made in the United States. If, for
any reason, any Borrower is prohibited by any Law from making any required payment hereunder
in an Alternative Currency, such Borrower shall make such payment in Dollars in the Dollar
Equivalent of the Alternative Currency payment amount. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such Lender’s Lending
Office. All payments received by the Administrative Agent (i) after 11:00 a.m., in the case
of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative
Agent in the case of payments in an Alternative Currency, shall be deemed received on the
next succeeding Business Day and any applicable interest or fee shall continue to accrue.
If any payment to be made by any Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of time shall
be reflected in computing interest or fees, as the case may be.




     (b) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied first, toward
costs and expenses (including Attorney Costs and amounts payable under Article III)
incurred by the Administrative Agent and each Lender; second, toward repayment 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
third, toward repayment of principal and L/C Borrowings then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal and L/C
Borrowings then due to such parties.




(c) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed
date of any Revolving Loan that such Lender will not make available to the
Administrative Agent such Lender’s share of such Revolving Loan, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 and may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Revolving Loan available to
the Administrative Agent, then the applicable Lender and the applicable Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in Same Day Funds with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but excluding
the date of payment to the Administrative Agent, at (A) in the case of a payment to
be made by such Lender, the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by the applicable Borrower,
the interest rate applicable to Base Rate Loans. If the applicable Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the applicable
Borrower the amount of such interest paid by such Borrower for such period. If such
Lender pays its share of the applicable Revolving Loan to the Administrative Agent,
then the amount so paid shall constitute such Lender’s Revolving Loan included in
such Borrowing. Any payment by such Borrower shall be without prejudice to any
claim such Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.



47









 






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




A notice of the Administrative Agent to any Lender or the applicable Borrower with respect
to any amount owing under this subsection (c) shall be conclusive, absent manifest error.




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




     (e) Obligations of Lenders Several. The obligations of the Lenders hereunder
to make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender
to make any Loan, to fund any such participation or to make any payment under Section
11.04(c) on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, no Lender shall be responsible for the
failure of any other Lender to so make its Loan, to purchase its participation or to make
its payment under Section 11.04(c).




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



2.13 Sharing of Payments by Lenders.




     If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Revolving Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided herein, then the
Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact,
and (b) purchase (for cash at face value) participations in the Revolving Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:



48









 






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




     (b) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Borrowers pursuant to and in accordance with the express terms
of this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.14 or
(z) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Revolving Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than to the Company or any Subsidiary
thereof (as to which the provisions of this Section shall apply).



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



2.14 Cash Collateral.





     (a) Certain Credit Support Events. Upon the request of the Administrative
Agent or the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in an L/C Borrowing or (ii)
if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Company shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations. At any time that there shall exist a Defaulting
Lender, immediately upon the request of the Administrative Agent, the L/C Issuer or the
Swing Line Lender, the Company shall deliver to the Administrative Agent Cash Collateral in
an amount sufficient to cover all Fronting Exposure (after giving effect to Section
2.15(a)(iv) and any Cash Collateral provided by the Defaulting Lender).




     (b) Grant of Security Interest. All Cash Collateral (other than credit support
not constituting funds subject to deposit) shall be maintained in blocked, non-interest
bearing deposit accounts at the Administrative Agent. The Company, and to the extent
provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the
Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the
Lenders (including the Swing Line Lender) and agrees to maintain, a first priority security
interest in all such cash, deposit accounts and all balances therein, and all other property
so provided as collateral pursuant hereto, and in all balances therein, and all other
property so provided as collateral pursuant hereto, and in all proceeds of the foregoing,
all as security for the obligations to which such Cash Collateral may be applied pursuant to
Section 2.14(c). If at any time the Administrative Agent determines that Cash Collateral is
subject to any right or claim of any Person other than the Administrative Agent as herein
provided, or that the total amount of such Cash Collateral is less than the applicable
Fronting Exposure and other obligations secured thereby, the Borrowers or the relevant
Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to
the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate
such deficiency.



49









 






     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.04,
2.05, 2.15 or 9.02 in respect of Letters of Credit or Swing Line Loans shall be held and
applied in satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to
fund participations therein (including, as to Cash Collateral provided by a Defaulting
Lender, any interest accrued on such obligation) and other obligations for which the Cash
Collateral was so provided, prior to any other application of such property as may be
provided herein.




     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to
reduce Fronting Exposure or other obligations shall be released promptly following (i) the
elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Lender), (ii)
delivery of Cash Collateral to the Administrative Agent pursuant to Section 2.15(a)(ii) in
substitution of Cash Collateral previously delivered by the Borrower pursuant to the second
sentence of Section 2.14(a) or (iii) the Administrative Agent’s good faith determination
that there exists excess Cash Collateral; provided, however, (x) that Cash
Collateral furnished by or on behalf of a Loan Party shall not be released during the
continuance of a Default or Event of Default (and following application as provided in this
Section 2.14 may be otherwise applied in accordance with Section 9.03) and (y) the Person
providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree
that Cash Collateral shall not be released but instead held to support future anticipated
Fronting Exposure or other obligations.



2.15 Defaulting Lenders.





     (a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender
is no longer a Defaulting Lender, to the extent permitted by applicable Law:




     (i) Waivers and Amendment. The Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 11.01.




     (ii) Reallocation of Payments. Any payment of principal, interest,
fees or other amount received by the Administrative Agent for the account of that
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to
Article IX or otherwise, and including any amounts made available to the
Administrative Agent by that Defaulting Lender pursuant to Section 11.08), shall be
applied at such time or times as may be determined by the Administrative Agent as
follows: first, to the payment of any amounts owing by that Defaulting
Lender to the Administrative Agent hereunder; second, to the payment on a
pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer or
Swing Line Lender hereunder; third, if so determined by the Administrative
Agent or requested by the L/C Issuer or Swing Line Lender, to be held as Cash
Collateral for future funding obligations of that Defaulting Lender of any
participation in any Swing Line Loan or Letter of Credit; fourth, as the
Company may request (so long as no Default or Event of Default exists), (i) to the
funding of any Loan in respect of which that Defaulting Lender has failed to fund
its portion thereof as required by this Agreement, as determined by the
Administrative Agent or (ii) so long as all Fronting Exposure shall be Cash
Collateralized immediately prior to and after giving effect thereto, to be held as
Cash Collateral, such Cash Collateral to be in substitution for Cash Collateral
previously provided by the Borrower pursuant to the second sentence of Section
2.14(a) and in an amount equal to the Cash Collateral being substituted;
fifth, if so determined by the



50









 







Administrative Agent and the Borrowers, to be held in a non-interest bearing
deposit account and released in order to satisfy obligations of that Defaulting
Lender to fund Loans under this Agreement; sixth, to the payment of any
amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer
or Swing Line Lender against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; seventh, so long as
no Default or Event of Default exists, to the payment of any amounts owing to the
Borrowers as a result of any judgment of a court of competent jurisdiction obtained
by the Borrowers against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; and eighth, to that
Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided, that, if (x) such payment is a payment of the principal amount of
any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully
funded its appropriate share and (y) such Loans or L/C Borrowings were made at a
time when the conditions set forth in Section 5.02 were satisfied or waived, such
payment shall be applied solely to the pay the Loans of, and L/C Borrowings owed to,
all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment
of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied
(or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this Section 2.15(a)(ii) shall be deemed paid to and redirected by that
Defaulting Lender, and each Lender irrevocably consents hereto.




     (iii) Certain Fees. The Defaulting Lender (x) shall not be entitled to
receive any Facility Fee pursuant to Section 2.09(a) for any period during which
such Lender is a Defaulting Lender (and the Company shall not be required to pay any
such fee that otherwise would have been required to have been paid to such
Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit
Fees as provided in Section 2.03(h).




     (iv) Reallocation of Pro Rata Shares to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing
the amount of the obligation of each non-Defaulting Lender to acquire, refinance or
fund participations in Letters of Credit or Swing Line Loans pursuant to Sections
2.03 and 2.04, the “Pro Rata Share” of each non-Defaulting Lender shall be computed
without giving effect to the Commitment of that Defaulting Lender; provided,
that, (x) each such reallocation shall be given effect only if, at the date of such
reallocation, no Default or Event of Default exists; and (y) the aggregate
obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit and Swing Line Loans shall not exceed the
positive difference, if any, of (1) the Commitment of that non-Defaulting Lender
minus (2) the aggregate Outstanding Amount of the Revolving Loans of that Lender.




     (b) Defaulting Lender Cure. If the Company, the Administrative Agent, Swing
Line Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting
Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will
so notify the parties hereto, whereupon as of the effective date specified in such notice
and subject to any conditions set forth therein (which may include arrangements with respect
to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion
of outstanding Loans of the other Lenders or take such other actions as the Administrative
Agent may determined to be necessary to cause the Revolving Loans and funded and unfunded
participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by
the Lenders in accordance with



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their Pro Rata Shares (without giving effect to Section 2.15(a)(iv)), whereupon that Lender
will cease to be a Defaulting Lender; provided, that, no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers
while that Lender was a Defaulting Lender; provided, further, that, except
to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender having been a Defaulting Lender.



2.16 Designated Borrowers.





     (a) Effective as of the date hereof, Teledyne Limited and Teledyne Dalsa, Inc. shall
each be a “Designated Borrower” hereunder and may receive Loans for its account on
the terms and conditions set forth in this Agreement. The Company may at any time, upon not
less than 15 Business Days’ notice from the Company to the Administrative Agent (or such
shorter period as may be agreed by the Administrative Agent in its sole discretion),
designate any additional Wholly Owned Subsidiary of the Company (an “Applicant
Borrower”) as a Designated Borrower to receive Loans hereunder by delivering to the
Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a
duly executed notice and agreement in substantially the form of Exhibit G (a
“Designated Borrower Request and Assumption Agreement”). The parties hereto
acknowledge and agree that prior to any Applicant Borrower becoming entitled to utilize the
credit facilities provided for herein the Administrative Agent and the Lenders shall have
approved such Applicant Borrower as a Designated Borrower (which approval shall not be
unreasonably delayed or denied or require the payment of a fee or other consideration) and
shall have received such supporting resolutions, incumbency certificates, opinions of
counsel and other documents or information, in form, content and scope reasonably
satisfactory to the Administrative Agent, as may be required by the Administrative Agent or
the Required Lenders in their sole discretion, and Notes signed by such new Borrowers to the
extent any Lenders so require. If the Administrative Agent and the Lenders agree that an
Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following
receipt of all such requested resolutions, incumbency certificates, opinions of counsel and
other documents or information, the Administrative Agent shall send a notice in
substantially the form of Exhibit H (a “Designated Borrower Notice”) to the
Company and the Lenders specifying the effective date upon which the Applicant Borrower
shall constitute a Designated Borrower for purposes hereof, whereupon each of the Lenders
agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and
conditions set forth herein, and each of the parties agrees that such Designated Borrower
otherwise shall be a Borrower for all purposes of this Agreement; provided that no Loan
Notice or Letter of Credit Application may be submitted by or on behalf of such Designated
Borrower until the date five Business Days after such effective date.




     (b) The Obligations of the Company and each Designated Borrower that is a Domestic
Subsidiary shall be joint and several in nature. The Obligations of all Designated
Borrowers that are Foreign Subsidiaries shall be joint and several in nature among such
Designated Borrowers that are Foreign Subsidiaries.




     (c) Each Subsidiary of the Company that becomes a “Designated Borrower” pursuant to
this Section 2.16 hereby irrevocably appoints the Company as its agent for all purposes
relevant to this Agreement and each of the other Loan Documents, including (i) the giving
and receipt of notices, (ii) the execution and delivery of all documents, instruments and
certificates contemplated herein and all modifications hereto, and (iii) the receipt of the
proceeds of any Loans made by the Lenders, to any such Designated Borrower hereunder. Any
acknowledgment, consent, direction, certification or other action which might otherwise be
valid



52









 







or effective only if given or taken by all Borrowers, or by each Borrower acting singly,
shall be valid and effective if given or taken only by the Company, whether or not any such
other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction,
certification or other communication delivered to the Company in accordance with the terms
of this Agreement shall be deemed to have been delivered to each Designated Borrower.




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



ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.





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




     (b) Payment of Other Taxes by the Borrowers. Without limiting the provisions
of subsection (a) above, each Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.




     (c) Indemnification by the Borrowers.




     (i) Each Borrower shall indemnify the Administrative Agent, each Lender and the
L/C Issuer, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. Each Borrower
shall also, and does hereby, indemnify the Administrative Agent, and shall make
payment in respect thereof within 10 days after demand therefor, for any amount
which a Lender or L/C Issuer for any reason fails to pay indefeasibly to the
Administrative Agent as required by clause (ii) of this subsection. A certificate
as to the amount of such payment or liability delivered to a Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or



53









 







by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.




     (ii) Without limiting the provisions of subsection (a) or (b) above, each
Lender and the L/C Issuer shall, and does hereby, indemnify each Borrower and the
Administrative Agent, and shall make payment in respect thereof within 10 days after
demand therefor, against any and all Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including the fees, charges and
disbursements of any counsel for such Borrower or the Administrative Agent) incurred
by or asserted against such Borrower or the Administrative Agent by any Governmental
Authority as a result of the failure by such Lender or L/C Issuer, as the case may
be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any
documentation required to be delivered by such Lender or L/C Issuer, as the case may
be, to such Borrower or the Administrative Agent pursuant to subsection (e),
including, with respect to a Borrower, amounts paid by such Borrower to the
Administrative Agent pursuant to clause (i) of this subsection. Each Lender and the
L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and
all amounts at any time owing to such Lender or L/C Issuer, as the case may be,
under this Agreement or any other Loan Document against any amount due to the
Administrative Agent under this clause (ii). The agreements in this clause (ii)
shall survive the resignation and/or replacement of the Administrative Agent, any
assignment of rights by, or the replacement of, a Lender or L/C Issuer, the
termination of the Commitments and the repayment, satisfaction or discharge of all
other Obligations.




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




     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which a Borrower is
resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect
to payments hereunder or under any other Loan Document (i) shall deliver to the Company and
to the Administrative Agent, at the time or times prescribed by applicable Laws or when
reasonably requested by the Company or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit such Borrower or
the Administrative Agent, as the case may be, to determine (A) whether or not payments made
by the respective Borrowers hereunder or under any other Loan Document are subject to Taxes,
(B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s
entitlement to any available exemption from, or reduction of, applicable Taxes in respect of
all payments to be made to such Lender by the respective Borrowers pursuant to this
Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the
applicable jurisdiction




     (ii) Without limiting the generality of the foregoing, in the event that any Borrower
is resident for tax purposes in the United States,




     (A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to such Borrower and the Administrative Agent
executed originals of Internal Revenue Service Form W-9 or such other



54









 







documentation or information prescribed by applicable Laws or reasonably
requested by such Borrower or the Administrative Agent as will enable such Borrower
or the Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements; and




     (B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to the Company and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Company on behalf of such Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable::




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




          (II) executed originals of Internal Revenue Service Form W-8ECI,




          (III) executed originals of Internal Revenue Service Form W-8IMY and all
required supporting documentation




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




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




     (iii) Without limiting the generality of the foregoing, in the event that any Borrower
is resident for tax purposes in the United Kingdom, any Foreign Lender that is entitled to
an exemption from or reduction of withholding tax imposed under United Kingdom law or any
treaty to which the United Kingdom is a party, with respect to payments hereunder or under
any other Loan Document, shall use commercially reasonable efforts to do whichever of the
following is applicable:




     (A) if such Lender has registered under the HMRC DT Treaty Passport scheme and
desires to apply the HMRC DT Treaty Passport scheme to any of the Obligations of any
UK Borrower, deliver to the Company and to the Administrative Agent a notice to that
effect along with its scheme number and jurisdiction of tax residence; and Company
or the applicable Borrower shall file a duly completed form DTTP2 in respect of such
Lender with HM Revenue & Customs within 30 days of the Closing Date or the effective
date of the relevant Assignment and Assumption (as the case may be);



55









 






     (B) if such Lender is entitled to the benefits of a tax treaty to which the
United Kingdom is a party and either has not registered under the HMRC DT Treaty
Passport scheme or does not desire to apply the HMRC DT Treaty Passport scheme to
any of the Obligations of any UK Borrower, prepare and file the form prescribed by
applicable United Kingdom law as a basis for claiming such exemption or reduction,
with a copy to the Administrative Agent and the Company; or




     (C) if such Lender is entitled to such exemption or reduction pursuant to any
other provision of United Kingdom law, deliver to the Company and to the
Administrative Agent a notice to that effect and prepare and file any other form
prescribed by United Kingdom law as a basis for claiming such exemption or
reduction, with a copy to the Administrative Agent and the Company.




     (iv) Each Lender shall promptly (A) notify the Company and the Administrative Agent of
any change in circumstances which would modify or render invalid any claimed exemption or
reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that any Borrower or the Administrative Agent make any withholding or deduction
for taxes from amounts payable to such Lender.




     (v) Each of the Borrowers shall promptly deliver to the Administrative Agent or any
Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to
the Closing Date (or such later date on which it first becomes a Borrower), and in a timely
fashion thereafter, such documents and forms required by any relevant taxing authorities
under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are
required to be furnished by such Lender or the Administrative Agent under such Laws in
connection with any payment by the Administrative Agent or any Lender of Taxes or Other
Taxes, or otherwise in connection with the Loan Documents, with respect to such
jurisdiction.




     (vi) Each Lender shall deliver to the Administrative Agent and the Borrower such
documentation reasonably requested by the Administrative Agent or the Borrower sufficient
for the Administrative Agent and the Borrower to comply with their obligations under FATCA
and to determine whether payments to such Lender are subject to withholding tax under FATCA.




     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or
the L/C Issuer determines, in its reasonable discretion, that it has received a refund of
any Taxes or Other Taxes as to which it has been indemnified by any Borrower or with respect
to which any Borrower has paid additional amounts pursuant to this Section, it shall
promptly pay to such Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by such Borrower under this Section
with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses and net of any loss or gain realized in the conversion of such funds
from or to another currency incurred by the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that each Borrower,
upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay
the amount paid over to such Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C
Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority. This subsection shall not



56









 







be construed to require the Administrative Agent, any Lender or the L/C Issuer to make
available its tax returns (or any other information relating to its taxes that it deems
confidential) to any Borrower or any other Person.



     Notwithstanding anything to the contrary contained herein, the Company shall not be required
to make any payments to any Lender pursuant to this Section 3.01 relating to any Taxes or Other
Taxes paid by a Lender more than 180 days prior to such Lender’s request for any additional payment
or compensation pursuant to this Section 3.01.


3.02 Illegality.




     If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurocurrency Rate Loans, or to determine or charge interest rates based upon the
Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority
of such Lender to purchase or sell, or to take deposits of, Dollars or any Alternative Currency in
the applicable interbank market, then, on notice thereof by such Lender to the Company through the
Administrative Agent, (i) any obligation of such Lender to make or continue Eurocurrency Rate Loans
in the affected currency or currencies or to convert Base Rate Loans to Eurocurrency Rate Loans
shall be suspended and (ii) if such notice asserts the illegality of such Lender making or
maintaining Base Rate Loans the interest rate on which is determined by reference to the
Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such
Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent
without reference to the Eurocurrency Rate component of the Base Rate, in each case until such
Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans
are denominated in Dollars, convert all such Eurocurrency Rate Loans of such Lender to Base Rate
Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate
component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (y) if such notice
asserts the illegality of such Lender determining or charging interest rates based upon the
Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the
Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof
until the Administrative Agent is advised in writing by such Lender that it is no longer illegal
for such Lender to determine or charge interest rates based upon the Eurocurrency Rate. Upon any
such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so
prepaid or converted.



3.03 Inability to Determine Rates.




     If the Required Lenders determine that for any reason in connection with any request for a
Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) deposits (whether in
Dollars or an Alternative Currency) are not being offered to banks in the applicable offshore
interbank market for such currency for the applicable amount and Interest Period of such
Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for determining the
Eurocurrency Base Rate for any requested Interest Period with respect to a proposed Eurocurrency
Rate Loan (whether denominated in Dollars or an Alternative Currency) or in connection with an
existing or proposed Base Rate Loan, or (c) the Eurocurrency Base Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the
cost to the Lenders of funding such Loan, the Administrative Agent will promptly notify the Company
and all Lenders. Thereafter, (x) the obligation of



57









 




the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies
shall be suspended and (y) in the event of a determination described in the preceding sentence with
respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency
Rate component in determining the Base Rate shall be suspended, in each case, until the
Administrative Agent revokes such notice. Upon receipt of such notice, the Company may revoke any
pending request for a Borrowing, conversion or continuation of Eurocurrency Rate Loans in the
affected currency or currencies or, failing that, will be deemed to have converted such request
into a request for a Borrowing of Base Rate Loans in the amount specified therein.




3.04 Increased Costs.





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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except (A)
any reserve requirement reflected in the Eurocurrency Rate) and (B) the requirements
of the Bank of England and the Financial Services Authority or the European Central
Bank reflected in the Mandatory Cost, other than as set forth below) or any L/C
Issuer;




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




     (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to
represent the cost to any Lender of complying with the requirements of the Bank of
England and/or the Financial Services Authority or the European Central Bank in
relation to its making, funding or maintaining Eurocurrency Rate Loans; or




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




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




     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any
Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender
or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements
has or would have the effect of reducing the rate of return on such Lender’s or the L/C
Issuer’s capital or



58









 







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




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




     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C
Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not
constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,
provided that no Borrower shall be required to compensate a Lender or the L/C Issuer
pursuant to the foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than six months prior to the date that such Lender or the L/C
Issuer, as the case may be, notifies the Company of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the six-month period referred to above shall be extended
to include the period of retroactive effect thereof).



3.05 Funding Losses.




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




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




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




     (c) any failure by any Borrower to make payment of any Loan or drawing under any Letter
of Credit (or interest due thereon) denominated in an Alternative Currency and required to
be paid by such Borrower in such Alternative Currency on its scheduled due date or any
payment thereof in a different currency; or




     (d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Company pursuant to Section 11.14.



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including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained or from the performance of any foreign exchange
contract. The Company or the applicable Designated Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.




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




     Notwithstanding anything to the contrary contained herein, no Borrower shall be required to
make any payments to any Lender pursuant to this Section 3.05 relating to any loss, cost or expense
incurred by a Lender more than 180 days prior to such Lender’s request for any additional payment
or compensation pursuant to this Section 3.05.



3.06 Mitigation Obligations; Replacement of Lenders.





     (a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or any Borrower is required to pay any additional amount to
any Lender, the L/C Issuer or any Governmental Authority for the account of any Lender or
the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section
3.02, then such Lender or the L/C Issuer shall, as applicable, 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 reasonable judgment of such Lender or the L/C Issuer, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case
may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as
applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer, as the
case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender, or the L/C Issuer, as the case may be. The Company hereby agrees to pay (or
cause the applicable Designated Borrower to pay) all reasonable costs and expenses incurred
by any Lender or the L/C Issuer in connection with any such designation or assignment.




     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Company
may replace such Lender in accordance with Section 11.14.


3.07 Survival.




     All of the Borrowers’ obligations under this Article III shall survive termination of
the Aggregate Revolving Commitments, repayment of all other Obligations hereunder and resignation
of the Administrative Agent.



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ARTICLE IV

GUARANTY



4.01 The Guaranty.





     (a) Each of the Subsidiary Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract, each Affiliate of a
Lender that enters into a Treasury Management Agreement and the Administrative Agent as
hereinafter provided, as primary obligor and not as surety, the prompt payment of the
Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory Cash Collateralization or otherwise) strictly in accordance
with the terms thereof. The Subsidiary Guarantors hereby further agree that if any of the
Obligations are not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise), the
Subsidiary Guarantors will, jointly and severally, promptly pay the same, without any demand
or notice whatsoever, and that in the case of any extension of time of payment or renewal of
any of the Obligations, the same will be promptly paid in full when due (whether at extended
maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization
or otherwise) in accordance with the terms of such extension or renewal.




     (b) The Company hereby guarantees to each Lender, each Affiliate of a Lender that
enters into a Swap Contract, each Affiliate of a Lender that enters into a Treasury
Management Agreement and the Administrative Agent as hereinafter provided, as primary
obligor and not as surety, the prompt payment of the Designated Borrower Obligations in full
when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory Cash Collateralization or otherwise) strictly in accordance with the terms
thereof. The Company hereby further agrees that if any of the Designated Borrower
Obligations are not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise), the
Company will promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Designated Borrower
Obligations, the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or
otherwise) in accordance with the terms of such extension or renewal.




     (c) Notwithstanding any provision to the contrary contained herein or in any other of
the Loan Documents, Swap Contracts or Treasury Management Agreements, the obligations of
each Guarantor under this Agreement and the other Loan Documents shall be limited to an
aggregate amount equal to the largest amount that would not render such obligations subject
to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable
state law.



4.02 Obligations Unconditional.





     (a) The obligations of the Subsidiary Guarantors under Section 4.01(a) are joint and
several, absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Loan Documents, Swap Contracts or Treasury
Management Agreements, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or security for any
of the Obligations, and, to the fullest extent permitted by applicable law, irrespective of
any other circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this Section 4.02(a)
that the obligations of the Subsidiary



61









 







Guarantors under this Article IV shall be absolute and unconditional under any and
all circumstances. Each Subsidiary Guarantor agrees that such Subsidiary Guarantor shall
have no right of subrogation, indemnity, reimbursement or contribution against the Company
or any other Subsidiary Guarantor for amounts paid under this Article IV until such
time as the Obligations have been paid in full and the Commitments have expired or
terminated.




     (b) The obligations of the Company under Section 4.01(b) are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Loan Documents, Swap Contracts or Treasury Management
Agreements, or any other agreement or instrument referred to therein, or any substitution,
release, impairment or exchange of any other guarantee of or security for any of the
Designated Borrower Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor, it being the intent of this
Section 4.02(b) that the obligations of the Company under this Article IV shall be
absolute and unconditional under any and all circumstances. The Company agrees that it
shall have no right of subrogation, indemnity, reimbursement or contribution against any
Designated Borrower for amounts paid under this Article IV until such time as the
Designated Borrower Obligations have been paid in full and the Commitments have expired or
terminated.




     (c) Without limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by law, the occurrence of any one or more of the following shall not alter
or impair the liability of any Guarantor hereunder, which shall remain absolute and
unconditional as described above:




     (i) at any time or from time to time, without notice to any Guarantor, the time
for any performance of or compliance with any of the Obligations shall be extended,
or such performance or compliance shall be waived;




     (ii) any of the acts mentioned in any of the provisions of any of the Loan
Documents, any Swap Contract between any Loan Party and any Lender, or any Affiliate
of a Lender, or any Treasury Management Agreement between any Loan Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument referred
to in the Loan Documents, such Swap Contracts or such Treasury Management Agreements
shall be done or omitted;




     (iii) the maturity of any of the Obligations shall be accelerated, or any of
the Obligations shall be modified, supplemented or amended in any respect, or any
right under any of the Loan Documents, any Swap Contract between any Loan Party and
any Lender, or any Affiliate of a Lender, or any Treasury Management Agreement
between any Loan Party and any Lender, or any Affiliate of a Lender, or any other
agreement or instrument referred to in the Loan Documents, such Swap Contracts or
such Treasury Management Agreements shall be waived or any other guarantee of any of
the Obligations or any security therefor shall be released, impaired or exchanged in
whole or in part or otherwise dealt with;




     (iv) any Lien granted to, or in favor of, the Administrative Agent or any
Lender or Lenders as security for any of the Obligations shall fail to attach or be
perfected; or



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     (v) any of the Obligations shall be determined to be void or voidable
(including, without limitation, for the benefit of any creditor of any Guarantor) or
shall be subordinated to the claims of any Person (including, without limitation,
any creditor of any Guarantor).



     With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person
under any of the Loan Documents, any Swap Contract between any Loan Party and any Lender, or any
Affiliate of a Lender or any Treasury Management Agreement between any Loan Party and any Lender,
or any Affiliate of a Lender, or any other agreement or instrument referred to in the Loan
Documents, such Swap Contracts or such Treasury Management Agreements, or against any other Person
under any other guarantee of, or security for, any of the Obligations.


4.03 Reinstatement.





     (a) The obligations of the Subsidiary Guarantors under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment by or on
behalf of any Person in respect of the Obligations is rescinded or must be otherwise
restored by any holder of any of the Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel) incurred by the Administrative
Agent or such Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.




     (b) The obligations of the Company under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf of any
Person in respect of the Designated Borrower Obligations is rescinded or must be otherwise
restored by any holder of any of the Designated Borrower Obligations, whether as a result of
any proceedings in bankruptcy or reorganization or otherwise, and the Company agrees that it
will indemnify the Administrative Agent and each Lender on demand for all reasonable costs
and expenses (including, without limitation, fees and expenses of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.


4.04 Certain Additional Waivers.




     Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the
Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02 and
through the exercise of rights of contribution pursuant to Section 4.06.


4.05 Remedies.





     (a) The Subsidiary Guarantors agree that, to the fullest extent permitted by law, as
between the Subsidiary Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due and payable
as provided in Section 9.02 (and shall be deemed to have become automatically due and
payable in



63









 







the circumstances provided in said Section 9.02) for purposes of Section 4.01(a)
notwithstanding any stay, injunction or other prohibition preventing such declaration (or
preventing the Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Obligations being deemed to have
become automatically due and payable), the Obligations (whether or not due and payable by
any other Person) shall forthwith become due and payable by the Subsidiary Guarantors for
purposes of Section 4.01(a).




     (b) The Company agrees that, to the fullest extent permitted by law, as between the
Company, on the one hand, and the Administrative Agent and the Lenders, on the other hand,
the Designated Borrower Obligations may be declared to be forthwith due and payable as
provided in Section 9.02 (and shall be deemed to have become automatically due and payable
in the circumstances provided in said Section 9.02) for purposes of Section 4.01(b)
notwithstanding any stay, injunction or other prohibition preventing such declaration (or
preventing the Designated Borrower Obligations from becoming automatically due and payable)
as against any other Person and that, in the event of such declaration (or the Designated
Borrower Obligations being deemed to have become automatically due and payable), the
Designated Borrower Obligations (whether or not due and payable by any other Person) shall
forthwith become due and payable by the Company for purposes of Section 4.01(b).


4.06 Rights of Contribution.




     The Subsidiary Guarantors agree among themselves that, in connection with payments made
hereunder, each Subsidiary Guarantor shall have contribution rights against the other Subsidiary
Guarantors as permitted under applicable law. Such contribution rights shall be subordinate and
subject in right of payment to the obligations of such Guarantors under the Loan Documents and no
Subsidiary Guarantor shall exercise such rights of contribution until all Obligations have been
paid in full and the Commitments have terminated.


4.07 Guarantee of Payment; Continuing Guarantee.





     (a) The guarantee given by the Subsidiary Guarantors in this Article IV is a
guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all
Obligations whenever arising.




     (b) The guarantee given by the Company in this Article IV is a guaranty of
payment and not of collection, is a continuing guarantee, and shall apply to all Designated
Borrower Obligations whenever arising.



ARTICLE V

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS



5.01 Conditions of Initial Credit Extension.




     The obligation of the L/C Issuer and each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:




     (a) Loan Documents. Receipt by the Administrative Agent of executed
counterparts of this Agreement and the other Loan Documents, each properly executed by a
Responsible Officer of the signing Loan Party and, in the case of this Agreement, by each
Lender.



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     (b) Opinions of Counsel. Receipt by the Administrative Agent of a favorable
opinion of in-house legal counsel of the Company and counsel to any Designated Borrower,
addressed to the Administrative Agent and each Lender, dated as of the Closing Date, and in
form and substance satisfactory to the Administrative Agent.




     (c) Financial Statements. The Administrative Agent shall have received:




     (i) consolidated financial statements of the Company and its Subsidiaries for
the fiscal year ended January 3, 2010, including balance sheet and income and cash
flow statements, in each case, audited by independent public accountants of
recognized national standing and prepared in conformity with GAAP; and




     (ii) unaudited consolidated financial statements of the Company and its
Subsidiaries for the nine month period ending October 3, 2010, including balance
sheet and statements of income or operations, shareholders’ equity and cash flows
(the “Interim Financial Statements”).




     (d) No Material Adverse Change. There shall not have occurred a material
adverse change since January 3, 2010 in the business, assets, Properties, liabilities
(actual or contingent), operations or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole.




     (e) Litigation. There shall not exist any action, suit, investigation or
proceeding against the Company or any Subsidiary pending or, to the knowledge of the
Company, threatened in any court or before an arbitrator or Governmental Authority that
could reasonably be expected to have a Material Adverse Effect.




     (f) Organization Documents, Resolutions, Etc. Receipt by the Administrative
Agent of the following, each of which shall be originals or facsimiles (followed promptly by
originals), in form and substance reasonably satisfactory to the Administrative Agent and
its legal counsel:




     (i) copies of the Organization Documents of each Loan Party certified by a
secretary or assistant secretary of such Loan Party to be true and correct as of the
Closing Date;




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




     (iii) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and
is validly existing, in good standing and qualified to engage in business in its
jurisdiction of organization or formation.




     (g) Closing Certificate. Receipt by the Administrative Agent of a certificate
signed by a Responsible Officer of the Company certifying that the conditions specified in
Sections 5.01(d) and (e) and Sections 5.02(a) and (b) have been satisfied.




65











 






     (h) Fees. Receipt by the Administrative Agent and the Lenders of any fees
required to be paid on or before the Closing Date.




     (i) Existing Credit Agreement. Receipt by the Administrative Agent of evidence
that the Existing Credit Agreement has been or concurrently with the Closing Date is being
terminated and all loans thereunder shall have been repaid concurrently with the Closing
Date.




     (j) Attorney Costs. The Company shall have paid all Attorney Costs of the
Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings.



     Without limiting the generality of the provisions of Section 10.04, for purposes of
determining compliance with the conditions specified in this Section 5.01, each Lender that has
signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice
from such Lender prior to the proposed Closing Date specifying its objection thereto.


5.02 Conditions to all Credit Extensions.




     The obligation of each Lender to honor any Request for Credit Extension (other than a Loan
Notice requesting only a conversion of Revolving Loans to the other Type, or a continuation of
Eurocurrency Rate Loans) is subject to the following conditions precedent:




     (a) The representations and warranties of the Company and each other Loan Party
contained in Article VI or any other Loan Document shall be true and correct in all
material respects on and as of the date of such Credit Extension, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case
they shall be true and correct in all material respects as of such earlier date, and except
that for purposes of this Section 5.02, the representations and warranties contained in
subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01.




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




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




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




     (e) In the case of Credit Extensions to be denominated in an Alternative Currency,
there shall not have occurred any change in national or international financial, political
or economic conditions or currency exchange rates or exchange controls which in the
reasonable opinion of the Administrative Agent or the Required Lenders would make it
impracticable for such Credit Extension to be denominated in the relevant Alternative
Currency.



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     Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of
Revolving Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by any
Borrower shall be deemed to be a representation and warranty that the conditions specified in
Sections 5.02(a), (b) and (c) have been satisfied on and as of the date of the applicable Credit
Extension.



ARTICLE VI

REPRESENTATIONS AND WARRANTIES




     The Borrowers represent and warrant to the Administrative Agent and the Lenders that:


6.01 Existence, Qualification and Power.




     Each Loan Party (a) is a corporation, partnership or limited liability company duly organized
or formed, validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on
its business and (ii) execute, deliver and perform its obligations under the Loan Documents to
which it is a party, and (c) is duly qualified and is licensed and in good standing under the Laws
of each jurisdiction where its ownership, lease or operation of properties or the conduct of its
business requires such qualification or license; except in each case referred to in clause (b)(i)
or (c), to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, Teledyne Brown Engineering, Inc., Teledyne Instruments,
Inc. and Teledyne Scientific & Imaging, LLC are the only Material Subsidiaries of the Company.


6.02 Authorization; No Contravention.




     The execution, delivery and performance by each Loan Party of each Loan Document to which such
Loan Party is party, have been duly authorized by all necessary corporate or other organizational
action, and do not (a) contravene the terms of any of such Loan Party’s Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of any Lien under, or
require any payment to be made under (i) any Contractual Obligation to which such Loan Party is a
party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Loan Party or its Property is subject; or (c) violate any Law (including,
without limitation, Regulation U or Regulation X issued by the FRB); except in each case referred
to in clause (b) to the extent it would not reasonably be expected to have a Material Adverse
Effect.


6.03 Governmental Authorization; Other Consents.




     No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person with respect to any Contractual Obligation is
necessary or required in connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document other than those that have
already been obtained and are in full force and effect or the failure of which to have been
obtained would not reasonably be expected to have a Material Adverse Effect.


6.04 Binding Effect.




     This Agreement and each other Loan Document has been duly executed and delivered by each Loan
Party that is party thereto. This Agreement and each other Loan Document constitutes a legal,
valid
and binding obligation of each Loan Party that is party thereto, enforceable against each such Loan
Party in accordance with its terms.



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6.05 Financial Statements; No Material Adverse Effect.





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




     (b) The Interim Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present in all material respects the financial condition of the
Company and its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments; and (iii) show all material indebtedness
and other liabilities, direct or contingent, of the Company and its Subsidiaries as of the
date thereof, including liabilities for taxes, material commitments and Indebtedness in
accordance with GAAP consistently applied.




     (c) From the date of the Audited Financial Statements to and including the Closing
Date, there has been no Disposition by the Company or any Subsidiary, or any Involuntary
Disposition, of any material part of the business or Property of the Company and its
Subsidiaries, taken as a whole, and no purchase or other acquisition by any of them of any
business or Property (including any Capital Stock of any other Person) material in relation
to the consolidated financial condition of the Company and its Subsidiaries, taken as a
whole, in each case, which is not reflected in the foregoing financial statements or in the
notes thereto or has not otherwise been disclosed publicly by the Company or in writing to
the Lenders on or prior to the Closing Date.




     (d) The financial statements delivered pursuant to Section 7.01(a) and (b) have been
prepared in accordance with GAAP consistently applied (except as may otherwise be permitted
under Section 7.01(a) and (b)) and present fairly in all material respects (on the basis
disclosed in the footnotes to such financial statements) the consolidated and consolidating
financial condition, results of operations and cash flows of the Company and its
Subsidiaries as of such date and for such periods.




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


6.06 Litigation.




     There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of
any Borrower after reasonable investigation, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Company or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain
to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or (b)
could reasonably be expected to have a Material Adverse Effect.



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6.07 No Default.




     Neither the Company nor any Subsidiary is in default under or with respect to any Contractual
Obligation that could reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing or would result from the consummation of the transactions contemplated
by this Agreement or any other Loan Document.


6.08 Ownership of Property; Liens.




     Each of the Company and its Subsidiaries has good record and marketable title in fee simple
to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of
its business, except for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted Liens.


6.09 Environmental Compliance.




     The Company and its Subsidiaries conduct in the ordinary course of business a review of the
effect of existing Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations and properties, and
as a result thereof the Company has reasonably concluded that such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.


6.10 Insurance.




     The properties of the Company and its Subsidiaries are insured with financially sound and
reputable insurance companies not Affiliates of the Company, in such amounts and covering such
risks as are customarily carried by companies engaged in similar businesses.


6.11 Taxes.




     The Company and its Subsidiaries have filed all federal, state and other material tax returns
and reports required to be filed, and have paid all federal, material state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have
been provided in accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.


6.12 ERISA Compliance.





     (a) Each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Internal Revenue Code and other federal or state laws. Each Pension Plan that
is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has
received a favorable determination letter from the Internal Revenue Service to the effect
that the form of such Plan is qualified under Section 401(a) of the Code and the trust
related thereto has been determined by the Internal Revenue Service to be exempt from
federal income tax under Section 501(a) of the Code or an application for such a letter is
currently being processed by the Internal Revenue Service. To the best knowledge of the
Loan Parties, nothing has occurred that would prevent, or cause the loss of, such
tax-qualified status.



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




     (c) No ERISA Event has occurred and neither the Company nor any ERISA Affiliate is
aware of any fact, event or circumstance that could reasonably be expected to constitute or
result in an ERISA Event with respect to any Pension Plan; (ii) the Company and each ERISA
Affiliate has met all applicable requirements under the Pension Funding Rules in respect of
each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding
Rules has been applied for or obtained; (iii) as of the most recent valuation date for any
Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of
the Code) is sixty percent (60%) or higher and neither the Company nor any ERISA Affiliate
knows of any facts or circumstances that could reasonably be expected to cause the funding
target attainment percentage for any such plan to drop below sixty percent (60%) as of the
most recent valuation date; (iv) neither the Company nor any ERISA Affiliate has incurred
any liability to the PBGC other than for the payment of premiums, and there are no premium
payments which have become due that are unpaid; (v) neither the Company nor any ERISA
Affiliate has engaged in a transaction that could be subject to Section 4069 or Section
4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator
thereof nor by the PBGC, and no event or circumstance has occurred or exists that could
reasonably be expected to cause the PGBC to institute proceedings under Title IV of ERISA to
terminate any Pension Plan.


6.13 Subsidiaries.




     Set forth on Schedule 6.13 is a complete and accurate list as of the Closing Date of each
Subsidiary, together with (i) jurisdiction of formation, (ii) number of shares of each class of
Capital Stock outstanding, (iii) number and percentage of outstanding shares of each class owned
(directly or indirectly) by the Company or any Subsidiary and (iv) number and effect, if exercised,
of all outstanding options, warrants, rights of conversion or purchase and all other similar rights
with respect thereto. The outstanding Capital Stock of each Subsidiary is validly issued, fully
paid and non-assessable.


6.14 Margin Regulations; Investment Company Act.





     (a) No Borrower is engaged and will engage in, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or
carrying margin stock. Following the application of the proceeds of each Borrowing or
drawing under each Letter of Credit, not more than 25% of the value of the assets (either of
any Borrower only or of the Company and its Subsidiaries on a consolidated basis) subject to
the provisions of Section 8.01 or Section 8.05 or subject to any restriction contained in
any agreement or instrument between the Borrower and any Lender or any Affiliate of any
Lender relating to Indebtedness and within the scope of Section 9.01(e) will be margin
stock.




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



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6.15 Disclosure.




     Each Loan Party has disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement, certificate or
other information furnished by or on behalf of any Loan Party to the Administrative Agent or any
Lender in connection with the this Agreement or under any other Loan Document (in each case, as
modified or supplemented by other information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that, with respect to
projected financial information, the Loan Parties represent only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.


6.16 Compliance with Laws.




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


6.17 Intellectual Property; Licenses, Etc.




     The Company and its Subsidiaries own, or possess the legal right to use, all of the material
trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses
and other intellectual property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses. Except for such claims and
infringements that could not reasonably be expected to have a Material Adverse Effect, no claim has
been asserted and is pending by any Person challenging or questioning the use of any IP Rights or
the validity or effectiveness of any IP Rights, nor does any Loan Party know of any such claim,
and, to the knowledge of the Responsible Officers of the Loan Parties, the use of any IP Rights by
the Company or any Subsidiary or the granting of a right or a license in respect of any IP Rights
from the Company or any Subsidiary does not infringe on the rights of any Person.


6.18 Solvency.




     The Loan Parties are Solvent on a consolidated basis.


6.19 Legal Name.




     The exact legal name and state of organization of each Loan Party is as set forth on the
signature pages hereto.


6.20 Labor Matters.




     There are no collective bargaining agreements (except as set forth on Schedule 6.20) or
Multiemployer Plans covering the employees of the Company or any Subsidiary as of the Closing Date
and neither the Company nor any Subsidiary has suffered any strikes, walkouts, work stoppages or
other material labor difficulty within the last five years.



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6.21 Representations as to Foreign Obligors.




     Each of the Company and each Foreign Obligor represents and warrants to the Administrative
Agent and the Lenders that:




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




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




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




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



ARTICLE VII

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Loan Parties shall and shall cause each of its Subsidiaries to:



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7.01 Financial Statements.




     Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the
Administrative Agent and the Required Lenders, with sufficient copies for each Lender:




     (a) as soon as available, but in any event within 100 days after the end of each fiscal
year of the Company, a consolidated balance sheet of the Company and its Subsidiaries as at
the end of such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in reasonable detail
and prepared in accordance with GAAP, audited and accompanied by a report of an independent
certified public accountant of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit;
and




     (b) as soon as available, but in any event within 50 days after the end of each of the
first three fiscal quarters of each fiscal year of the Company, a consolidated balance sheet
including shareholders’ equity of the Company and its Subsidiaries as at the end of such
fiscal quarter and latest fiscal year end in comparative form, the related consolidated
statements of income or operations for such fiscal quarter and for the portion of the
Company’s fiscal year then ended, setting forth in each case in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, and the related statement of cash flows for the portion
of the Company’s fiscal year then ended, setting forth in comparative form the figures for
the corresponding portion of the previous fiscal year all in reasonable detail and certified
by a Responsible Officer of the Company as fairly presenting the financial condition,
results of operations, shareholders’ equity and cash flows of the Company and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and
the absence of footnotes.



     As to any information contained in materials furnished pursuant to Section 7.02(b), the
Company shall not be separately required to furnish such information under clause (a) or (b) above,
but the foregoing shall not be in derogation of the obligation of the Company to furnish the
information and materials described in subsections (a) and (b) above at the times specified
therein.


7.02 Certificates; Other Information.




     Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the
Administrative Agent and the Required Lenders, with sufficient copies for each Lender:




     (a) concurrently with the delivery of the financial statements referred to in Sections
7.01(a) and (b), a duly completed Compliance Certificate (including detailed calculations
and reconciliations to GAAP if Agreement Accounting Principles differ from GAAP at the time
of such Compliance Certificate) signed by a Responsible Officer of the Company (which
delivery may, unless the Administrative Agent, or a Lender requests executed originals, be
by electronic communication including fax or email and shall be deemed to be an original
authentic counterpart thereof for all purposes);




     (b) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the
Company,



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and copies of all annual, regular, periodic and special reports and registration statements
which the Company may file or be required to file with the SEC under Section 13 or 15(d) of
the Securities Exchange Act of 1934 or to a holder of any Indebtedness owed by the Company
or any Subsidiary in its capacity as such a holder and not otherwise required to be
delivered to the Administrative Agent pursuant hereto;




     (c) promptly, and in any event within ten days after receipt thereof by any Loan Party
or any Subsidiary thereof, copies of each notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency regarding financial
or other operational results of the Company or any Subsidiary thereof; and




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



     Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02(b) (to
the extent any such documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date
(i) on which the Company posts such documents, or provides a link thereto on the Company’s website
on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents
are posted on the Company’s behalf on IntraLinks/IntraAgency or another relevant website, if any,
to which each Lender and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that: (i) the Company shall
deliver paper copies of such documents to the Administrative Agent or any Lender upon the request
of the Administrative Agent or such Lender to deliver such paper copies and (ii) the Company shall
notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting
of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in
every instance the Company shall be required to provide paper copies of the Compliance Certificates
required by Section 7.02(a) to the Administrative Agent and each of the Lenders. Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery
or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Company with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.



     Each Borrower hereby acknowledges that (a) the Administrative Agent and/or MLPF&S will make
available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf
of such Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b)
certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrower or its securities) (each, a
“Public Lender”). Each Borrower hereby agrees that (w) all Borrower Materials that are to
be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x)
by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the
Administrative Agent, MLPF&S and the Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to the Borrowers or their respective securities for
purposes of United States federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set
forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the



74









 




Platform designated as “Public Investor”; and (z) the Administrative Agent and MLPF&S shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not designated “Public Investor.”



7.03 Notices.




     Promptly notify the Administrative Agent and each Lender:




     (a) of the occurrence of any Default.




     (b) of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (in each case to the extent such matter has resulted or
could reasonably be expected to have a Material Adverse Effect) (i) breach or
non-performance of, or any default under, a Contractual Obligation of the Company or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between
the Company or any Subsidiary and any Governmental Authority; or (iii) the commencement of,
or any material development in, any litigation or proceeding affecting the Company or any
Subsidiary, including pursuant to any applicable Environmental Laws.




     (c) of the occurrence of any ERISA Event.




     (d) of any material change in accounting policies or financial reporting practices by
the Company or any Subsidiary.



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Company setting forth details of the occurrence referred to therein and stating what
action the Company has taken and proposes to take with respect thereto. Each notice pursuant to
Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


7.04 Payment of Obligations.




     Pay and discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all material tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are
being maintained by the Company or such Subsidiary; (b) all lawful claims which, if unpaid, would
by law become a Lien upon its property, and (c) all Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or agreement evidencing such
Indebtedness, except in the case of clauses (b) and (c), to the extent any failure to pay or
discharge such claim or Indebtedness could not reasonably be expected to have a Material Adverse
Effect.


7.05 Preservation of Existence, Etc.




     (a) Preserve, renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization except in a transaction permitted
by Section 8.04 or 8.05; and (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of its business,
except to the extent that the failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) preserve or renew all of its material registered patents, trademarks, trade
names and service marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.



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7.06 Maintenance of Properties.




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


7.07 Maintenance of Insurance.




     Maintain in full force and effect insurance (including worker’s compensation insurance,
liability insurance, casualty insurance and business interruption insurance) with financially sound
and reputable insurance companies not Affiliates of the Company, in such amounts, with such
deductibles and covering such risks as are customarily carried by similarly situated companies.


7.08 Compliance with Laws.




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


7.09 Books and Records.




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


7.10 Inspection Rights.




     Permit representatives and independent contractors of the Administrative Agent and each Lender
to visit and inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its Responsible Officers, and at such reasonable times during normal business hours
and as often as may be reasonably desired, upon reasonable advance notice to the Company;
provided, however, that when an Event of Default exists and/or after the occurrence
of an event or events that have a Material Adverse Effect, the Administrative Agent or any Lender
(or any of their respective representatives or independent contractors) may do any of the foregoing
as well as discuss the affairs, finances and accounts of such Loan Party with its directors and
independent public accountants, all at the reasonable expense of the Company at any time during
normal business hours after having provided reasonable notice. Notwithstanding the foregoing, no
Loan Party or any of its Subsidiaries shall be required to disclose (a) any materials subject to a
confidentiality obligation binding upon such Person (but provided further that such Person shall,
at the request of the Lender, use commercially reasonable efforts to obtain permission for such
disclosure and, in the event permission cannot be obtained, furnish some information regarding the
matters to which such materials relate as can reasonably be furnished without violation of such



76









 




confidentiality obligations) or (b) any communications protected by attorney-client privilege, the
disclosure or inspection of which would waive such privilege.



7.11 Use of Proceeds.




     Use the proceeds of the Credit Extensions to finance working capital, make Permitted
Acquisitions and for other lawful corporate purposes, provided that in no event shall the proceeds
of the Credit Extensions be used in contravention of any Law or of any Loan Document.


7.12 Additional Guarantors.




     Promptly, and in any event, not later than thirty (30) days, after the acquisition or
formation of any Domestic Subsidiary that is a Material Subsidiary, notify the Administrative Agent
thereof in writing, and cause such Person to (a) become a Guarantor by executing and delivering to
the Administrative Agent a Joinder Agreement or such other documents as the Administrative Agent
shall deem appropriate for such purpose, and (b) deliver to the Administrative Agent documents of
the types referred to in Section 5.01(f) and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (a)), all in form, content and scope reasonably satisfactory to
the Administrative Agent.


7.13 ERISA Compliance.




     Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each
Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal
Revenue Code and other federal or state law, except where termination of such Plan is permitted by
the terms of such Plan and any applicable collective bargaining agreement and in accordance with
the applicable provisions of ERISA, the Internal Revenue Code and other applicable Laws; (b) cause
each Plan that is qualified under Section 401(a) of the Internal Revenue Code to maintain such
qualification; and (c) make all required contributions to any Plan subject to Section 412, Section
430 or Section 431 of the Internal Revenue Code.


7.14 Approvals and Authorizations.




     Maintain all authorizations, consents, approvals and licenses from, exemptions of, and filings
and registrations with, each Governmental Authority of the jurisdiction in which each Foreign
Obligor is organized and existing, and all approvals and consents of each other Person in such
jurisdiction, in each case that are required in connection with the Loan Documents.



ARTICLE VIII

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, no
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:


8.01 Liens.




     Create, incur, assume or permit to exist (upon the happening of a contingency or otherwise)
any Lien on or with respect to any property or asset (including, without limitation, any document
or instrument in respect of goods or accounts receivable) of any Loan Party or any such Subsidiary,
whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or
otherwise



77









 




convey any right to receive income or profits (unless it makes, or causes to be made, effective
provision whereby the Obligations will be equally and ratably secured with any and all other
obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory
to the Required Lenders (it being understood and agreed by all present parties hereto and
subsequent holders of the Obligations that the Required Lenders are hereby authorized to execute
and deliver any intercreditor, collateral agency or similar agreements and security documents in
connection with the grant of a ratable Lien to secure the Obligations in form and substance
satisfactory to the Required Lenders and that execution thereof by the Required Lenders will bind
all holders from time to time of the Obligations) and, in any such case, the Obligations shall have
the benefit, to the fullest extent that, and with such priority as, the holders of the Obligations
may be entitled under applicable law, of an equitable Lien on such property), except:





     (a) Liens existing on the Closing Date and reflected on Schedule 8.01 hereof;




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




     (c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business, provided
that such Liens secure only amounts not yet due and payable or, if due and payable, are
unfiled and no other action has been taken to enforce the same or are being contested in
good faith by appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established;




     (d) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;




     (e) deposits and other customary Liens to secure the performance of bids, trade
contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other
than bonds related to judgments or litigation), performance bonds and other obligations of a
like nature incurred in the ordinary course of business;




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




     (g) Liens securing judgments for the payment of money not constituting an Event of
Default hereunder or securing appeal or other surety bonds related to such judgments;




     (h) leases or subleases granted to others not interfering in any material respect with
the business of the Company or any of its Subsidiaries;




     (i) normal and customary rights of setoff (a) upon deposits of cash in favor of banks
or other depository institutions or (b) contained in trade contracts entered into in the
ordinary course of business;




     (j) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;



78









 






     (k) Liens of sellers of goods to the Company and any of its Subsidiaries arising under
Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the
ordinary course of business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses;




     (l) Liens granted in favor of any Governmental Authority created pursuant to cost-type
contracts, progress-billing contracts or advance-pay contracts with such Governmental
Authority to which the Company or any of its Subsidiaries is a party in the materials and
products of the Company and its Subsidiaries subject to such contracts or, in the case of
advance-pay contracts only, any advance payments made thereunder to the Company and its
Subsidiaries by such Governmental Authority;




     (m) Liens securing Indebtedness of a Subsidiary to the Company or to a Subsidiary;




     (n) Liens incurred after the Closing Date given to secure the payment of the purchase
price incurred in connection with the acquisition, construction or improvement of property
(other than accounts receivable or inventory) useful and intended to be used in carrying on
the business of the Company or a Subsidiary, including Liens existing on such property at
the time of acquisition or construction thereof or Liens incurred within 365 days of such
acquisition or completion of such construction or improvement, provided that (i) the Lien
shall attach solely to the property acquired, purchased, constructed or improved and the
proceeds thereof and, if required by the terms of the instrument originally creating such
Lien, other property (or improvement thereon) which is an improvement to or is acquired for
specific use in connection with such acquired or constructed property (or improvement
thereon); (ii) at the time of acquisition, construction or improvement of such property (or,
in the case of any Lien incurred within three hundred sixty-five (365) days of such
acquisition or completion of such construction or improvement, at the time of the incurrence
of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all
Indebtedness secured by Liens on such property, whether or not assumed by the Company or a
Subsidiary, shall not exceed the lesser of (y) the cost of such acquisition, construction or
improvement or (z) the fair market value of such property (as determined in good faith by
one or more officers of the Company or Subsidiary to whom authority to enter into the
transaction has been delegated by the board of directors of the Company or the Subsidiary);
and (iii) at the time of such incurrence and after giving effect thereto, no Default or
Event of Default would exist;




     (o) any Lien existing on property of a Person immediately prior to its being
consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary,
or any Lien existing on any property acquired by the Company or any Subsidiary at the time
such property is so acquired (whether or not the Indebtedness secured thereby shall have
been assumed), provided that (i) no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such
acquisition of property, (ii) each such Lien shall extend solely to the item or items of
property or assets of the Person so acquired and, if required by the terms of the instrument
originally creating such Lien, other property which is an improvement to or is acquired for
specific use in connection with such acquired property, and (iii) at the time of such
incurrence and after giving effect thereto, no Default or Event of Default would exist;




     (p) any extensions, renewals or replacements of any Lien permitted by the preceding
subparagraphs (a), (m), (n) and (o) of this Section 8.01, provided that (i) no additional
property shall be encumbered by such Liens, (ii) the unpaid principal amount of the
Indebtedness or other



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obligations secured thereby shall not be increased on or after the date of any extension,
renewal or replacement, and (iii) at such time and immediately after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing;




     (q) licenses or sublicenses granted to third parties so long as such licenses or
sublicenses would not, individually or in the aggregate, have a Material Adverse Effect or
otherwise interfere in any material respect with the business of the Company or any of its
Subsidiaries;




     (r) Liens on insurance proceeds and deposits arising in the ordinary course of business
in connection with the financing of insurance premiums and so long as such Liens would not,
individually or in the aggregate, have a Material Adverse Effect;




     (s) Liens in favor of a securities intermediary granted in the ordinary course of
business on securities in a securities account;




     (t) Liens attaching solely to cash earnest money deposits in connection with any letter
of intent or purchase agreement in connection with any Acquisition permitted hereby and so
long as such Liens would not, individually or in the aggregate, have a Material Adverse
Effect;




     (u) Liens securing Indebtedness of the Company or any Subsidiary, provided that the
incurrence of any such Indebtedness shall be permitted by Section 8.03, and, provided
further that, no such Liens may secure any obligations under the Note Purchase Agreement,
unless effective provision is made whereby the Obligations will be equally and ratably
secured with any and all other obligations thereby secured as described above and in form
and substance reasonably satisfactory to the Required Lenders; and




     (v) Liens, if any, in favor of the Administrative Agent on Cash Collateral delivered
pursuant to Section 2.14(a).



8.02 Investments.




     Make any Investments, except:




     (a) Investments held by the Company or such Subsidiary in the form of cash or Cash
Equivalents;




     (b) Investments existing as of the Closing Date and set forth in Schedule 8.02;




     (c) Investments in any Person that is a Loan Party prior to giving effect to such
Investment;




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




     (e) Guarantees permitted by Section 8.03;




     (f) Investments permitted by Section 8.04, Section 8.06 or Section 8.07;



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     (g) Permitted Acquisitions;




     (h) Investments by any Loan Party in any Subsidiary of the Company that is not a Loan
Party and joint ventures not to exceed at any time an aggregate amount equal to twenty
percent (20%) of Consolidated Total Assets as of the last day of the most recently ended
fiscal quarter for which the Company shall have delivered financial statements pursuant to
Section 7.01(a) or (b), as the case may be; and




     (i) the Company may purchase, redeem, acquire or retire shares of its Capital Stock,
provided that (x) before and after giving effect to any such purchase,
redemption, acquisition or retirement, no Default or Event of Default shall exist and (y)
after giving effect thereto, the Company shall be in pro forma compliance with the financial
covenants set forth in Section 8.09 hereof.



8.03 Priority Indebtedness.




     Incur any Priority Indebtedness at any time unless at the time of the incurrence thereof and
after giving effect thereto, the aggregate amount of all Priority Indebtedness would not exceed 15%
of Consolidated Net Worth, determined as of the end of the then most recently ended fiscal quarter
of the Company.


8.04 Fundamental Changes.




     Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person; provided that, subject to Section 7.12
and provided that, after giving effect to any such transaction, no Default or Event of Default
shall exist, (a) the Company may merge or consolidate with any of its Subsidiaries provided that
the Company shall be the continuing or surviving corporation, (b) any Subsidiary of the Company may
merge or consolidate with any other Subsidiary of the Company provided that if a Loan Party is a
party thereto, a Loan Party shall be the continuing or surviving corporation, (c) any Loan Party
other than the Company may merge or consolidate with any other Loan Party other than the Company,
(d) any Foreign Subsidiary may be merged or consolidated with or into any Loan Party provided that
such Loan Party shall be the continuing or surviving corporation, (e) any Foreign Subsidiary may be
merged or consolidated with or into any other Foreign Subsidiary and (f) any Subsidiary may wind
up, liquidate or dissolve itself so long as it transfers all or substantially all of its assets to
a Loan Party prior to such wind up, liquidation or dissolution.


8.05 Dispositions.




     Make any Disposition unless (a) the consideration paid in connection therewith shall be cash
or Cash Equivalents paid contemporaneously with consummation of the transaction and shall be in an
amount not less than the fair market value of the Property disposed of and (b) the total book value
of all of the assets sold or otherwise disposed of by the Company and its Subsidiaries in all such
transactions in any fiscal year of the Company represent less than fifteen percent (15%) of
Consolidated Total Assets determined as of the last day of the immediately preceding fiscal year;
provided that, in determining compliance with this Section 8.05 a Disposition shall be excluded to
the extent the net proceeds of such Disposition are used within a period of 365 days following such
Disposition to acquire assets or property useful in the ordinary course of business of the Company
or its Subsidiaries. Notwithstanding the foregoing, the parties hereto agree that the Company may
sell the assets or Capital Stock of Teledyne Continental Motors, Inc. (“TCM”) and/or
Teledyne Mattituck Services, Inc. (“TMS”) including, without



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limitation, any intellectual property owned by the Company or any other Subsidiary necessary for
the use and operation of the assets of TCM and/or TMS for cash consideration; provided that, the
net proceeds of such Disposition are used by the Company within a period of 365 days following such
Disposition to (i) acquire productive assets or property useful in the ordinary course of business
of the Company or its Subsidiaries and having a value equal to the value of such assets sold,
leased or otherwise disposed of and/or (ii) repurchase Indebtedness as required by Section 10.5(2)
of the Note Purchase Agreement. Provided that no Default or Event of Default exists or arises
therefrom, upon the sale, exchange, transfer or other disposition of all of the assets or Capital
Stock of a Loan Party not prohibited by this Section 8.05, such Loan Party shall be deemed
automatically and unconditionally released and discharged from all obligations hereunder without
any further action required on the part of the Administrative Agent or any Lender. The
Administrative Agent shall, upon the Loan Parties’ request and at the Loan Parties’ expense,
deliver such documentation as is reasonably necessary to evidence such release and discharge. For
purposes of clarification, the release of TCM and/or TMS in accordance with the terms hereof shall
not constitute a Material Adverse Effect.



8.06 Change in Nature of Business.




     Enter into any business, either directly or indirectly through a Subsidiary, except for (a)
any business in which the Company or the applicable Subsidiary is engaged in on the Closing Date,
(b) any business that is reasonably related thereto, (c) any business that is substantially the
same industry as any business conducted by the Company or such Subsidiary on the Closing Date or
(d) any other business on a non-material basis to the extent acquired by the Company in a Permitted
Acquisition so long as the other business or businesses acquired by the Company pursuant to such
Permitted Acquisition otherwise satisfy the requirements of clauses (a), (b) or (c) of this Section
8.06.


8.07 Transactions with Affiliates and Insiders.




     Enter into or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (a) advances of working capital to any Loan Party,
(b) transfers of cash and assets to any Loan Party, (c) intercompany transactions expressly
permitted by Section 8.02, Section 8.03, Section 8.04 or Section 8.05, (d) compensation and
reimbursement of expenses of officers and directors in accordance with the Company’s policies which
comply in all material respects with applicable Laws and (e) except as otherwise specifically
limited in this Agreement, other transactions which are entered into in the ordinary course of such
Person’s business on terms and conditions substantially as favorable to such Person as would be
obtainable by it in a comparable arms-length transaction with a Person other than an officer,
director or Affiliate.


8.08 Use of Proceeds.




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


8.09 Financial Covenants.





     (a) Consolidated Net Debt to EBITDA Ratio. Permit the Consolidated Net Debt to
EBITDA Ratio as of the end of any fiscal quarter of the Company to be greater than 3.25:1.0;
provided, however, that if an Acquisition Event shall have occurred during
such fiscal quarter, the Company shall have the right to permit the Consolidated Net Debt to
EBITDA Ratio to exceed



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     3.25:1.0, so long as (a) it does not exceed 3.50:1.0 and (b) it does not exceed 3.25: 1.0
for more than four (4) consecutive fiscal quarters.




     (b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio as of the end of any fiscal quarter of the Company to be less than 3.0 to
1.0.


8.10 Organization Documents.




     Amend, modify or change its Organization Documents in a manner materially adverse to the
Lenders.



ARTICLE IX

EVENTS OF DEFAULT AND REMEDIES



9.01 Events of Default.




     Any of the following shall constitute an Event of Default:




     (a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any L/C
Obligation, or (ii) within five Business Days after the same becomes due, any interest on
any Loan or on any L/C Obligation, or any commitment fee or other fee due hereunder, or any
other amount payable hereunder or under any other Loan Document; or




     (b) Specific Covenants. The Company fails to perform or observe any term,
covenant or agreement contained in any of Section 7.01, 7.02, 7.03, 7.05(a), 7.10, 7.11, or
7.12 or Article VIII; or




     (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for thirty days
after the earlier of (i) a Responsible Officer obtaining actual knowledge of such default or
(ii) the Company receiving written notice of such default from the Administrative Agent or
any Lender (any such written notice to be identified as a “notice of default” and to refer
specifically to this Section 9.01(c); or




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




     (e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all creditors under
any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B)
fails to observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee having an aggregate principal amount (including undrawn committed
or available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount or contained in any
instrument or agreement



83









 







evidencing, securing or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or
such Guarantee to become payable or cash collateral in respect thereof to be demanded; or
(ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as to which the
Company or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the Company or
any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Company or such Subsidiary as a result thereof is greater than
the Threshold Amount; or




     (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of such Person and the appointment continues undischarged
or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for sixty calendar
days, or an order for relief is entered in any such proceeding; or




     (g) Inability to Pay Debts; Attachment. (i) The Company or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its debts as
they become due, or (ii) any writ or warrant of attachment or execution or similar process
is issued or levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within thirty days after its issue or levy; or




     (h) Judgments. There is entered against the Company or any Subsidiary (i) one
or more final judgments or orders for the payment of money in an aggregate amount exceeding
the Threshold Amount (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, there is a period of thirty (30)
consecutive days during which such judgment is not vacated, satisfied or discharged or a
stay of enforcement of such judgment, by reason of a pending appeal posting of bond or
otherwise, is not in effect; or




     (i) If (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the
Internal Revenue Code for any plan year or part thereof or a waiver of such standards or
extension of any amortization period is sought or granted under Section 412 of the Code,
(ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to
be filed with the PBGC or the PBGC shall have instituted proceedings under Section 4042 of
ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have
notified the Company or any ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate “amount of unfunded benefit liabilities” (within the
meaning of Section 4001(a)(18) of ERISA) under all Plans, determined in accordance with
Title IV of ERISA, shall exceed $150,000,000, (iv) the Company or any ERISA Affiliate shall
have incurred or is reasonably



84









 






expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to Plans, or (v) the Company or any ERISA
Affiliate withdraws from any Multiemployer Plan; provided that any such event or events
described in clauses (i) through (v) above, either individually or together with any other
such event or events, would reasonably be expected to have a Material Adverse Effect; or




     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect or fails
to give the Administrative Agent and/or the Lenders the rights, powers and privileges
purported to be created by the Loan Documents; or any Loan Party or any other Person on
behalf of a Loan Party contests in any manner the validity or enforceability of any Loan
Document; or any Loan Party denies that it has any or further liability or obligation under
any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or




     (k) Change of Control. There occurs any Change of Control.


9.02 Remedies Upon Event of Default.




     If any Event of Default occurs and is continuing, the Administrative Agent shall, at the
request of, or may, with the consent of, the Required Lenders, take any or all of the following
actions:




     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;




     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrowers;




     (c) require that the Company Cash Collateralize the L/C Obligations (in an amount equal
to the then Outstanding Amount thereof); and




     (d) exercise on behalf of itself and the Lenders all rights and remedies available to
it and the Lenders under the Loan Documents or applicable law;


provided, however, that upon the occurrence of an actual or deemed entry of an order for relief
with respect to any Borrower under the Bankruptcy Code of the United States, the obligation of each
Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of the
Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender.



9.03 Application of Funds.




     After the exercise of remedies provided for in Section 9.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 9.02), any amounts
received on account of the Obligations shall be applied by the Administrative Agent in the
following order:



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     First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;




     Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the Lenders
(including Attorney Costs and amounts payable under Article III), ratably among them
in proportion to the amounts described in this clause Second payable to them;




     Third, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans and L/C Borrowings and fees, premiums and scheduled periodic
payments, and any interest accrued thereon, due under any Swap Contract between any Credit
Party and any Lender, or any Affiliate of a Lender, to the extent such Swap Contract is
permitted by Section 8.03(d), ratably among the Lenders (and, in the case of such Swap
Contracts, Affiliates of Lenders) in proportion to the respective amounts described in this
clause Third held by them;




     Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings and breakage, termination or other payments, and
any interest accrued thereon, due under any Swap Contract between any Credit Party and any
Lender, or any Affiliate of a Lender, to the extent such Swap Contract is permitted by
Section 8.03(d), payments of amounts due under any Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, and to Cash Collateralize that
portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit,
ratably among the Lenders (and, in the case of such Swap Contracts or Treasury Management
Agreements, Affiliates of Lenders) in proportion to the respective amounts described in this
clause Fourth held by them; and




     Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Company or as otherwise required by Law.



     Subject to Section 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.



ARTICLE X

ADMINISTRATIVE AGENT



10.01 Appointment and Authority.




     Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither any Borrower nor
any other Loan Party shall have rights as a third party beneficiary of any of such provisions.



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10.02 Rights as a Lender.




     The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity for and generally
engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as
if such Person were not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.


10.03 Exculpatory Provisions.




     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of the foregoing,
the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents), provided
that the Administrative Agent shall not be required to take any action that, in its opinion
or the opinion of its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any of the Borrowers or any of their respective Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent by the Company, a Lender or the L/C Issuer.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set



87









 




forth in Article V or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.



10.04 Reliance by Administrative Agent.




     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such
Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Company), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.


10.05 Delegation of Duties.




     The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.


10.06 Resignation of Administrative Agent.




     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuer and the Company. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Company, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Company and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until
such time as the Required Lenders appoint a successor Administrative Agent as provided for above in
this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under the other Loan



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Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Company to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Company and such successor. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 11.04 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.




     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.


10.07 Non-Reliance on Administrative Agent and Other Lenders.




     Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.


10.08 No Other Duties, Etc.




     Anything herein to the contrary notwithstanding, the bookrunners, arrangers, documentation
agents, syndication agent or co-agents listed on the cover page hereof shall not have any powers,
duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.


10.09 Administrative Agent May File Proofs of Claim.




     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on any Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise:




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than
obligations under Swap Contracts or Treasury Management Agreements to which the
Administrative Agent is not a party) that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the Lenders, the
L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses,



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disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer
and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 11.04) allowed in such
judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender, the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.


10.10 Releases.




     The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its option
and in its discretion, to release any Guarantor from its obligations under the Guaranty if such
Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Guarantor from its obligations under
the Guaranty, pursuant to this Section 10.10.



ARTICLE XI

MISCELLANEOUS



11.01 Amendments, Etc.




     No amendment or waiver of any provision of this Agreement or any other Loan Document, and no
consent to any departure by the Company or any other Loan Party therefrom, shall be effective
unless in writing signed by the Required Lenders and the Company or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:




     (a) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of such Lender (it being
understood and agreed that a waiver of any condition precedent set forth in Section 5.02 or
of any Default or Event of Default or a mandatory reduction in Commitments is not considered
an extension or increase in Commitments of any Lender);




     (b) postpone any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees or other amounts due to the Lenders (or any of them)



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hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;




     (c) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be
necessary to amend the definition of “Default Rate” or to waive any obligation of any
Borrower to pay interest at the Default Rate;




     (d) change Section 2.13 or Section 9.03 in a manner that would alter the pro rata
sharing of payments or the order of application of payments required thereby without the
written consent of each Lender directly affected thereby;




     (e) amend Section 1.05 or the definition of “Alternative Currency” without the written
consent of each Lender directly affected thereby;




     (f) change any provision of this Section or the definition of “Required Lenders” or any
other provision hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder without the written consent of each Lender directly affected thereby;




     (g) release the Company or any Designated Borrower or, except in connection with a
merger or consolidation permitted under Section 8.04 or a Disposition permitted under
Section 8.05, all or substantially all of the Subsidiary Guarantors, from its or their
obligations under the Loan Documents without the written consent of each Lender directly
affected thereby;


and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed
by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C
Issuer under this Agreement or any Letter of Credit Application relating to any Letter of Credit
issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) the Administrative Agent Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to
the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms
requires the consent of all Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting
Lender may not be increased or extended without the consent of such Lender and (y) any waiver,
amendment or modification requiring the consent of all Lenders or each affected Lender that by its
terms affects any Defaulting Lender more adversely than other affected Lenders shall require the
consent of such Defaulting Lender.




     Notwithstanding the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on
any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions
set forth herein and (y) the Required Lenders shall determine whether or not to allow a Loan Party
to use cash collateral in the context of a bankruptcy or insolvency proceeding and such
determination shall be binding on all of the Lenders.



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11.02 Notices; Effectiveness; Electronic Communication.





     (a) General. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (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, sent
by telecopier or by electronic mail as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:




     (i) if to the Borrowers, the Administrative Agent, the L/C Issuer or the Swing
Line Lender, to the address, facsimile number, electronic mail address or telephone
number specified for such Person on Schedule 11.02 or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated
by such party in a notice to the other parties; and




     (ii) if to any other Lender, to the address, facsimile number, electronic mail
address or telephone number specified in its Administrative Questionnaire or to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the Company, the Administrative
Agent, the L/C Issuer and the Swing Line Lender.




     Notices sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by telecopier or
electronic mail shall be deemed to have been given when sent (except that, if not given
during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient). Notices pursuant to this
subsection (a) delivered through electronic communications shall be effective as provided in
subsection (b), and to the extent provided in subsection (b) below, shall be effective as
provided in such subsection (b).




     (b) Electronic Communications. Notices and other communications to the Lenders
and the L/C Issuer hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as
applicable, has notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent or the Company
may, in its discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that approval of
such procedures may be limited to particular notices or communications.




     Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt
of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), provided that if
such notice or other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at the opening of
business on the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt
by the intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website
address therefor.



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     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS
MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no
event shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties”) have any liability to any Borrower, any Lender, the L/C Issuer or
any other Person for losses, claims, damages, liabilities or expenses of any kind (whether
in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to any Borrower, any Lender, the
L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).




     (d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent,
the L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the other parties hereto.
Each other Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Company, the Administrative Agent, the L/C
Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent has on record
(i) an effective address, contact name, telephone number, telecopier number and electronic
mail address to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one
individual at or on behalf of such Public Lender to at all times have selected the “Private
Side Information” or similar designation on the content declaration screen of the Platform
in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made available through
the “Public Side Information” portion of the Platform and that may contain material
non-public information with respect to the Company or its securities for purposes of United
States Federal or state securities laws.




     (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon
any notices (including telephonic Loan Notices and Swing Line Loan Notices) purportedly
given by or on behalf of any Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied
from any confirmation thereof. The Company shall indemnify the Administrative Agent, the
L/C Issuer, each Lender and the Related Parties from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly given by
or on behalf of any Borrower. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.



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11.03 No Waiver; Cumulative Remedies.




     No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay
by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.


11.04 Expenses; Indemnity; Damage Waiver.





     (a) Costs and Expenses. 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 external counsel for the Administrative Agent), in
connection with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by
the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), in
connection with the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such
reasonable out-of-pocket expenses incurred during any workout, restructuring or negotiations
in respect of such Loans or Letters of Credit.




     (b) Indemnification by the Company. The Company shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses (including the reasonable fees, charges
and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by any Borrower or any other Loan Party arising
out of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by any Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to any Borrower or any of
its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other
theory, whether brought by a third party or by the Company or any other Loan Party, 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 (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have



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resulted from the gross negligence or willful misconduct of such Indemnitee, (y) result from
a claim brought by the Company or any other Loan Party against an Indemnitee for breach in
bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if
the Company or such Loan Party has obtained a final and nonappealable judgment in its favor
on such claim as determined by a court of competent jurisdiction or (z) are based on any
theory of liability for punitive damages.




     (c) Reimbursement by Lenders. To the extent that the Company for any reason
fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any
Related Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the
case may be, such Lender’s 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 the Administrative Agent (or any
such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of
any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).




     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and 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, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications, electronic,
internet or other information transmission systems in connection with the Loans, this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.


11.05 Payments Set Aside.




     To the extent that any payment by or on behalf of any Loan Party is made to the Administrative
Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender
exercises its right of set-off, and such payment or the proceeds of such set-off or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such set-off had not
occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the date such payment
is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this Agreement.



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11.06 Successors and Assigns.





     (a) Successors and Assigns Generally. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither any Borrower nor any other Loan
Party may assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of this Section or (iii)
by way of pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in subsection
(d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.




     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement and the other
Loan Documents (including all or a portion of its Commitment and the Loans (including for
purposes of this subsection (b), participations in L/C Obligations and Swing Line Loans) at
the time owing to it); provided that any such assignment shall be subject to the following
conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund, no minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in effect,
the principal outstanding balance of the Loans of the assigning Lender
subject to each such assignment, determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Company otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group
and concurrent assignments from members of an Assignee Group to a single
assignee (or to an assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such
minimum amount has been met;




     (ii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this Section
and, in addition:



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     (A) the consent of the Company (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments if such
assignment is to a Person that is not a Lender with a Commitment in respect
of the Commitment subject to such assignment, an Affiliate of such Lender or
an Approved Fund with respect to such Lender; and




     (C) the consent of the L/C Issuer (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more
Letters of Credit (whether or not then outstanding); and




     (D) the consent of the Swing Line Lender (such consent not to
unreasonably withheld or delayed) shall be required for any assignment in
respect of the Revolving Commitment if such assignment is to a Person that
is not a Lender with a Revolving Commitment, an Affiliate of such Lender or
an Approved Fund with respect to such Lender.




     (iii) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500;
provided, however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.




     (iv) No Assignment to Certain Persons. No such assignment shall be
made (A) to the Company or any of the Company’s Affiliates or Subsidiaries, or (B)
to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon
becoming a Lender hereunder, would constitute any of the foregoing Persons described
in this clause (B) or (C) to a natural person.




     (v) Certain Additional Payments. In connection with any assignment of
rights and obligations of any Defaulting Lender hereunder, no such assignment shall
be effective unless and until, in addition to the other conditions thereto set forth
herein, the parties to the assignment shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient, upon distribution thereof as
appropriate (which may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions, including
funding, with the consent of the Company and the Administrative Agent, the
applicable pro rata share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder
(and interest accrued thereon) and (y) acquire (and fund as appropriate) its full
pro rata share of all Loans and participations in Letters of Credit and Swing Line
Loans in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the
event that any assignment of rights and obligations of any Defaulting Lender
hereunder shall become effective under applicable Law without compliance with



97









 







the provisions of this paragraph, then the assignee of such interest shall be deemed
to be a Defaulting Lender for all purposes of this Agreement until such compliance
occurs.




     (vi) No Assignment Resulting in Additional Indemnified Taxes. No such
assignment shall be made to any Person that, through its Lending Offices, is not
capable of lending the applicable Alternative Currencies to the relevant Borrowers
without the imposition of any additional Indemnified Taxes.




     Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 3.01, 3.04, 3.05, 11.04 and 11.05 with respect to facts and circumstances occurring
prior to the effective date of such assignment). Upon request, each Borrower (at its
expense) shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with
this subsection shall be treated for purposes of this Agreement as a sale by such Lender of
a participation in such rights and obligations in accordance with subsection (d) of this
Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers (and such agency being solely for tax purposes), shall maintain at
the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it
and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. In addition, the Administrative Agent shall maintain on the Register information
regarding the designation, and revocation of designation, of any Lender as a Defaulting
Lender. The Register shall be available for inspection by each of the Borrowers and any
Lender, at any reasonable time and from time to time upon reasonable prior notice.




     (d) Participations. Any Lender may at any time, without the consent of, or
notice to, any Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person, a Defaulting Lender or the Company or any of the Company’s
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans (including such Lender’s participations in L/C Obligations
and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations and (iii) the Borrowers,
the Administrative Agent, the other Lenders and the L/C Issuer shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this



98









 







Agreement; provided that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other modification
described in clauses (a) through (g) of the first proviso to Section 11.01 that directly
affects such Participant. Subject to subsection (e) of this Section, each Borrower agrees
that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to
the same extent as if it were a Lender and had acquired its interest by assignment pursuant
to subsection (b) of this Section. 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 2.13 as though it were a Lender.




     (e) Limitation upon Participation Rights. A Participant shall not be entitled
to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Company’s prior
written consent. A Participant that would be a Foreign Lender if it were a Lender shall not
be entitled to the benefits of Section 3.01 unless the Company is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 3.01(e) as though it were a Lender.




     (f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall
release such Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.




     (g) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America
may, (i) upon thirty days’ notice to the Company and the Lenders, resign as L/C Issuer
and/or (ii) upon thirty days’ notice to the Company, resign as Swing Line Lender. In the
event of any such resignation as L/C Issuer or Swing Line Lender, the Company shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Company to appoint any
such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line
Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and
all L/C Obligations with respect thereto (including the right to require the Lenders to make
Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it
and outstanding as of the effective date of such resignation, including the right to require
the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or
Swing Line Lender, (1) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as
the case may be, and (2) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession
or make other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.




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11.07 Confidentiality.




     Each of the Administrative Agent 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 and
other advisors (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 provided, however,
that the Administrative Agent and/or such Lender will give the Company as soon as reasonably
practicable prior notice of any such requirement or subpoena so that the Company may seek a
protective order or other appropriate remedy to prevent such disclosure unless such applicable law
or regulation or subpoena expressly provides that no such prior notice shall be given to the
Company; (d) to any other party to this Agreement; (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any Eligible Assignee of or Participant in, or any prospective
Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any direct or indirect contractual counterparty or prospective counterparty (or such
contractual counterparty’s or prospective counterparty’s professional advisor) to any credit
derivative transaction relating to obligations of the Loan Parties; (g) with the consent of the
Company; (h) to the extent such Information (i) becomes publicly available other than as a result
of a breach of this Section, (ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Company who was not known by the Administrative
Agent or such Lender to be bound by a confidentiality agreement or legal obligation of
confidentiality with respect to such information or (iii) is independently developed by the
Administrative Agent or any Lender without the use of confidential information; or (i) to the
National Association of Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender’s or its Affiliates’
investment portfolio in connection with ratings issued with respect to such Lender or its
Affiliates. In addition, the Administrative Agent and the Lenders may disclose the existence of
this Agreement and information about this Agreement to market data collectors, similar service
providers to the lending industry, and service providers to the Administrative Agent and the
Lenders in connection with the administration and management of this Agreement, the other Loan
Documents, the Commitments, and the Credit Extensions. For the purposes of this Section,
“Information” means all information received from any Loan Party relating to any Loan Party or its
business, other than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by any Loan Party; provided that, in the case
of information received from a Loan Party after the date hereof, such information is clearly
identified in writing 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 reasonable degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.


11.08 Set-off.




     In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and
during the continuance of any Event of Default, each Lender, the L/C Issuer and each of their
respective Affiliates is authorized at any time and from time to time, without prior notice to any
Borrower or any other Loan Party, any such notice being waived by the Company (on its own behalf
and on behalf of each Loan Party) to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at any time held by,
and other indebtedness (in whatever currency) at any time owing by, such Lender to or for the
credit or the account of the respective Loan



100









 




Parties against any and all Obligations owing to such Lender hereunder or under any other Loan
Document, now or hereafter existing, irrespective of whether or not the Administrative Agent or
such Lender shall have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured or denominated in a currency different from that of
the applicable deposit or indebtedness; provided, that, in the event that any Defaulting
Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over
immediately to the Administrative Agent for further application in accordance with the provisions
of Section 2.15 and, pending such payment, shall be segregated by such Defaulting Lender from its
other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders
and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement
describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it
exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender
and the L/C Issuer agrees to notify the Company and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall not affect the
validity of such set-off and application.



11.09 Interest Rate Limitation.




     Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to
the Company. In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.


11.10 Counterparts.




     This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.


11.11 Integration.




     This Agreement, together with the other Loan Documents, comprises the complete and integrated
agreement of the parties on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict with
this Agreement. Each Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.


11.12 Survival of Representations and Warranties.




     All representations and warranties made hereunder and in any other Loan Document or other
document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. Such representations and warranties have been or
will be



101









 




relied upon by the Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of
any Credit Extension, and shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding. Without limiting the foregoing provisions of this Section 11.12, if and to the extent
that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be
limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C
Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in
effect only to the extent not so limited.



11.13 Severability.




     If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.


11.14 Replacement of Lenders.




     If (i) any Lender requests compensation under Section 3.04, (ii) any Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, or (iii) a Lender (a “Non-Consenting Lender”) does not consent to
a proposed change, waiver, discharge or termination with respect to any Loan Document that has been
approved by the Required Lenders as provided in Section 11.01 but requires unanimous consent of all
Lenders or all Lenders directly affected thereby (as applicable) and, or (iv) any Lender is a
Defaulting Lender, then the Company may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents required by, Section
11.06), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment), provided that:




     (a) the Company shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);




     (b) such Lender shall have received payment of an amount equal to one hundred percent
(100%) of the outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.05) from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Company or applicable
Designated Borrower (in the case of all other amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will
result in a reduction in such compensation or payments thereafter;




     (d) such assignment does not conflict with applicable Laws; and



102









 






     (e) in the case of any such assignment resulting from a Non-Consenting Lender’s failure
to consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document, the applicable replacement bank, financial institution or Fund consents to the
proposed change, waiver, discharge or termination; provided that the failure by such
Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair
the validity of the removal of such Non-Consenting Lender and the mandatory assignment of
such Non-Consenting Lender’s Commitments and outstanding Loans and participations in L/C
Obligations and Swing Line Loans pursuant to this Section 11.13 shall nevertheless be
effective without the execution by such Non-Consenting Lender of an Assignment and
Assumption.



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


11.15 Governing Law; Jurisdiction, Etc.





     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.




     (b) SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK, NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY HERETO WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE
LAW OF SUCH STATE.


11.16 Waiver of Right to Trial by Jury.




     EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH



103









 




ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.



11.17 No Advisory or Fiduciary Responsibility.




     In connection with all aspects of each transaction contemplated hereby, the Loan Parties each
acknowledge and agree that: (i) the credit facilities provided for hereunder and any related
arranging or other services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial
transaction between the Loan Parties and their respective Affiliates, on the one hand, and the
Administrative Agent and MLPF&S, on the other hand, and each of the Loan Parties is capable of
evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver
or other modification hereof or thereof); (ii) in connection with the process leading to such
transaction, the Administrative Agent and MLPF&S each is and has been acting solely as a principal
and is not the financial advisor, agent or fiduciary, for the Loan Parties or any of their
respective Affiliates, stockholders, creditors or employees or any other Person; (iii) neither the
Administrative Agent nor MLPF&S has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of any Loan Party with respect to any of the transactions contemplated
hereby or the process leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent
or MLPF&S has advised or is currently advising any of the Loan Parties or any of their respective
Affiliates on other matters) and neither the Administrative Agent nor MLPF&S has any obligation to
any of the Loan Parties or any of their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent and and their respective Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Loan Parties and
their respective Affiliates, and neither the Administrative Agent nor MLPF&S has any obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v)
neither the Administrative Agent, nor MLPF&S has provided nor will provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated hereby (including any
amendment, waiver or other modification hereof or of any other Loan Document) and each Loan Party
has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate. Each Loan Party hereby waives and releases, to the fullest extent permitted by law,
any claims that it may have against the Administrative Agent and/or MLPF&S with respect to any
breach or alleged breach of agency or fiduciary duty; provided, however, that
nothing in this Section 11.17 releases the Administrative Agent or MLPF&S from fraudulent conduct.


11.18 USA PATRIOT Act Notice.




     Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify
and record information that identifies the Borrowers, which information includes the name and
address of each Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify such Borrower in accordance with the Act.


11.19 Judgment Currency.




     If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or any other Loan Document in one currency into another currency, the rate of exchange
used shall be that at which in accordance with normal banking procedures the Administrative Agent
could



104









 




purchase the first currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of each Borrower in respect of any such sum due from it to
the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in
which such sum is denominated in accordance with the applicable provisions of this Agreement (the
“Agreement Currency”), be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less
than the sum originally due to the Administrative Agent from any Borrower in the Agreement
Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or the Person to whom such obligation was owing against such
loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due
to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount
of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable
law).



11.20 Waiver of Notice of Termination.




     Those Lenders party hereto which are also party to the Existing Credit Agreement hereby waive
any prior notice requirement under the Existing Credit Agreement with respect to the termination of
commitments thereunder and the making of any prepayments thereunder.



[SIGNATURE PAGES FOLLOW]









105









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.


BORROWER:




	 	 	 	 	 
	 	TELEDYNE TECHNOLOGIES INCORPORATED,

a Delaware corporation

 	 
	 	By:  	/S/
 	 
	 	Name:  	Dale A. Schnittjer 	 
	 	Title:  	Senior Vice President and Chief Financial Officer 	 
	 


GUARANTORS:




	 	 	 	 	 
	 	TELEDYNE BROWN ENGINEERING, INC.,

a Delaware corporation

 	 
	 	By:  	/S/
 	 
	 	Name:  	Melanie S. Cibik 	 
	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	TELEDYNE INSTRUMENTS, INC.,

a Delaware corporation

 	 
	 	By:  	/S/
 	 
	 	Name:  	Dale A. Schnittjer 	 
	 	Title:  	Senior Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	TELEDYNE SCIENTIFIC & IMAGING, LLC,

a Delaware limited liability company

 	 
	 	By:  	/S/
 	 
	 	Name:  	Dale A. Schnittjer 	 
	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	DESIGNATED BORROWERS:	 TELEDYNE LIMITED,

an English limited company

 	 
	 	By:  	/S/
 	 
	 	Name:  	Dale A. Schnittjer 	 
	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	TELEDYNE DALSA, INC.

an Ontario, Canada corporation

 	 
	 	By:  	/S/
 	 
	 	Name:  	Dale A. Schnittjer 	 
	 	Title:  	Senior Vice President 	 
	 





TELEDYNE
TECHNOLOGIES INCORPORATED

CREDIT AGREEMENT



 









 







ADMINISTRATIVE AGENT:




	 	 	 	 	 
	 	BANK OF AMERICA, N.A..,

as Administrative Agent

 	 
	 	By:  	/S/
 	 
	 	Name:  	Bridgett J. Manduk 	 
	 	Title:  	Assistant Vice President 	 




TELEDYNE
TECHNOLOGIES INCORPORATED

CREDIT AGREEMENT



 









 






	 	 	 	 	 


LENDERS:




	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as a Lender, L/C Issuer and Swing Line Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Mathew Griesback 	 
	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,


as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Ling Li 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Victor Pierzchalski 	 
	 	Title:  	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	John I. Paul 	 
	 	Title:  	Portfolio Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF MONTREAL,

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Scott W. Morris 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON,

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Robert Besser 	 
	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.,

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Vanessa Sheh Meyer 	 
	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF THE WEST,

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Cecile Segovia 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COMERICA BANK,

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Don R. Carruth 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Brian P. Fox 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY,

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Brandon Rolek 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ROYAL BANK OF CANADA,

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Richard Smith 	 
	 	Title:  	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	RBC BANK (USA),

as a Lender

 	 
	 	By:  	/S/
 	 
	 	Name:  	Richard Marshall 	 
	 	Title:  	Market Executive — National Division 	 
	 




 











 





Schedule 1.01(a)




Existing Letters of Credit



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Beneficiary	 	SBLC No.	 	 	Date of Expiry	 	 	Face Amount	 
	Continental Casualty Company, et al
	 	 	00000003020340	 	 	 	11/5/2011	 	 	$	673,000.00	 
	St. Paul Fire and Marine Insurance Co.
	 	 	00000003045385	 	 	 	8/31/2011	 	 	$	308,688.00	 
	Ace American Insurance Company
	 	 	00000003053840	 	 	 	11/1/2011	 	 	$	2,737,480.00	 
	Zurich American Insurance Company
	 	 	00000003071693	 	 	 	11/1/2011	 	 	$	4,325,000.00	 
	Lycoming, a Textron Company
	 	 	00000003077479	 	 	 	9/1/2011	 	 	$	100,000.00	 
	Ica Fluor Daniel, S. de R.L. de C.V.
	 	 	00000003100209	 	 	 	7/7/2011	 	 	$	57,358.00	 
	Bank of America, N.A.
	 	 	00000003074701	 	 	 	6/30/2011	 	 	$	72,326.70	 
	Bank of America, N.A.
	 	 	00000003074704	 	 	 	6/30/2011	 	 	$	4,550.00	 
	State Bank of India
	 	 	00000003082710	 	 	 	1/26/2012	 	 	$	82,583.00	 
	Bank of America, N.A.
	 	 	00000003097442	 	 	 	11/1/2011	 	 	$	68,000.00	 
	Royal Bank of Scotland
	 	 	00000003097821	 	 	 	6/30/2011	 	 	$	43,700.00	 
	Banco Nacional de Mexico
	 	 	00000003098568	 	 	 	4/11/2011	 	 	$	33,174.85	 
	Hyundai Engineering
	 	 	00000003098835	 	 	 	4/1/2013	 	 	$	106,766.70	 
	Department of Toxic Substances Control
	 	 	00000003099309	 	 	 	4/17/2011	 	 	$	420,688.00	 
	County of Ventura Environmental Health Division
	 	 	00000003099310	 	 	 	4/17/2011	 	 	$	27,810.00	 
	Los Angeles County Fire Department
	 	 	00000003099311	 	 	 	4/17/2011	 	 	$	112,115.00	 
	California Regional Water Quality Control
Board, Los Angeles Region
	 	 	00000003099312	 	 	 	4/17/2011	 	 	$	738,056.00	 
	Open Joint Stock Company
	 	 	00000003100193	 	 	 	3/31/2011	 	 	$	133,919.50	 
	State Bank of India
	 	 	00000003100585	 	 	 	6/30/2011	 	 	$	91,422.80	 
	State Bank of India
	 	 	00000003100586	 	 	 	6/30/2011	 	 	$	91,422.80	 
	Beijing Cei Technology Co. Ltd.
	 	 	00000003100762	 	 	 	2/28/2011	 	 	$	41,000.00	 
	Alstom Power Systems
	 	 	00000003101161	 	 	 	10/12/1012	 	 	$	140,879.00	 
	State Bank of India
	 	 	00000003101707	 	 	 	3/28/2012	 	 	$	27,136.50	 
	University of Adelaide
	 	 	00000003101835	 	 	 	6/24/2011	 	 	$	75,127.00	 
	Prairie State Generating Company, LLC
	 	 	00000003102143	 	 	 	8/1/2011	 	 	$	154,836.00	 
	State Bank of India
	 	 	00000003102321	 	 	 	6/13/2013	 	 	$	34,719.00	 
	State Bank of India
	 	 	00000003102429	 	 	 	10/30/2012	 	 	$	51,900.00	 
	Bank of America, N.A.
	 	 	00000003102531	 	 	 	5/15/2011	 	 	$	110,000.00	 
	State Bank of India
	 	 	00000003112715	 	 	 	6/30/2012	 	 	$	42,966.00	 
	State Bank of India
	 	 	00000003112716	 	 	 	6/30/2012	 	 	$	45,918.00	 
	State Bank of India
	 	 	00000003112717	 	 	 	6/30/2012	 	 	$	45,918.00	 
	State Bank of India
	 	 	00000003112718	 	 	 	6/30/2012	 	 	$	47,753.00	 
	State Bank of India
	 	 	00000003112944	 	 	 	12//30/2012	 	 	$	44,577.00	 
	State Bank of India
	 	 	00000003112945	 	 	 	3/28/2013	 	 	$	42,745.00	 
	State Bank of India
	 	 	00000003112946	 	 	 	3/28/2013	 	 	$	42,745.00	 
	State Bank of India
	 	 	00000003112947	 	 	 	13/30/2012	 	 	$	39,792.00	 
	Hyundai Engineering
	 	 	00000003112985	 	 	 	9/30/2013	 	 	$	155,064.30	 
	Idbi Bank, Bangalore
	 	 	00000003113335	 	 	 	2/14/2013	 	 	$	4,833.00	 
	Toshiba America, Inc
	 	 	00000003114501	 	 	 	6/30/2013	 	 	$	55,331.20	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	Beneficiary	 	SBLC No.	 	 	Date of Expiry	 	 	Face Amount	 
	Bank of America, N.A.
	 	 	00000003114610	 	 	 	7/30/2011	 	 	$	313,000.00	 
	Bank of America, N.A.
	 	 	00000003114611	 	 	 	6/30/2011	 	 	$	313,000.00	 
	State Bank of India
	 	 	00000003114717	 	 	 	12/30/2013	 	 	$	88,445.00	 
	National Bank of Egypt
	 	 	00000003115050	 	 	 	12/30/2012	 	 	$	56,237.00	 
	Banque de Tunisie
	 	 	00000003115919	 	 	 	8/19/2011	 	 	$	2,300.00	 
	Siemens Energy, Inc.
	 	 	00000003116017	 	 	 	6/30/2013	 	 	$	31,292.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 





 









 






Schedule 1.01(b)




MANDATORY COST FORMULAE




	1.	 	The Mandatory Cost (to the extent applicable) is an addition to the interest rate to
compensate Lenders for the cost of compliance with:






	 	(a)	 	the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its
functions); or
	 
	 	(b)	 	the requirements of the European Central Bank.






	2.	 	On the first day of each Interest Period (or as soon as practicable thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost
Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per annum. The
Administrative Agent will, at the request of the Company or any Lender, deliver to the Company
or such Lender as the case may be, a statement setting forth the calculation of any Mandatory
Cost.
	 
	3.	 	The Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender to the
Administrative Agent. This percentage will be certified by such Lender in its notice to the
Administrative Agent as the cost (expressed as a percentage of such Lender’s participation in
all Loans made from such Lending Office) of complying with the minimum reserve requirements of
the European Central Bank in respect of Loans made from that Lending Office.
	 
	4.	 	The Additional Cost Rate for any Lender lending from a Lending Office in the United
Kingdom will be calculated by the Administrative Agent as follows:






	 	(a)	 	in relation to any Loan in Sterling:





	 	 	 

	AB+C(B-D)+E x 0.01
 

100 – (A+C)

	 	per cent per annum 







	 	(b)	 	in relation to any Loan in any currency other than Sterling:





	 	 	 

	E x 0.01

	 	per cent per annum
	 
	 	 
	300
	 	 






Where:





	 	“A”	 	 is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.
	 
	 	“B”	 	is the percentage rate of interest (excluding the Applicable Rate, the
Mandatory Cost and any interest charged on overdue amounts pursuant to the first
sentence of Section 2.08(b) and, in the case of interest (other than on overdue
amounts) charged at the





 









 





	 	 	 	Default Rate, without counting any increase in interest rate effected by the
charging of the Default Rate) payable for the relevant Interest Period of such
Loan.






	 	“C”	 	is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England.
	 
	 	“D”	 	is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.
	 
	 	“E”	 	is designed to compensate Lenders for amounts payable under the Fees
Regulations and is calculated by the Administrative Agent as being the average of the
most recent rates of charge supplied by the Lenders to the Administrative Agent
pursuant to paragraph 7 below and expressed in pounds per £1,000,000.






	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the
meanings given to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;
	 
	 	(b)	 	“Fees Regulations” means the FSA Supervision Manual or such other law
or regulation as may be in force from time to time in respect of the payment of fees
for the acceptance of deposits;
	 
	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Regulations
under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated
fee required pursuant to the Fees Regulations but taking into account any applicable
discount rate); and
	 
	 	(d)	 	“Tariff Base” has the meaning given to it in, and will be calculated
in accordance with, the Fees Regulations.






	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae
as percentages (i.e. 5% will be included in the formula as 5 and not as 0.05). A negative
result obtained by subtracting D from B shall be taken as zero. The resulting figures shall
be rounded to four decimal places.
	 
	7.	 	If requested by the Administrative Agent or the Company, each Lender with a Lending
Office in the United Kingdom or a Participating Member State shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative Agent and
the Company, the rate of charge payable by such Lender to the Financial Services Authority
pursuant to the Fees Regulations in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by such Lender as being the average of the Fee
Tariffs applicable to such Lender for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of such Lender.
	 
	8.	 	Each Lender shall supply any information required by the Administrative Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without limitation, each
Lender shall supply the following information in writing on or prior to the date on which it
becomes a Lender:




 









 












	 	(a)	 	its jurisdiction of incorporation and the jurisdiction of the Lending Office
out of which it is making available its participation in the relevant Loan; and
	 
	 	(b)	 	any other information that the Administrative Agent may reasonably require for
such purpose.





Each Lender shall promptly notify the Administrative Agent in writing of any change to the
information provided by it pursuant to this paragraph.





	9.	 	The percentages or rates of charge of each Lender for the purpose of A, C and E above
shall be determined by the Administrative Agent based upon the information supplied to it
pursuant to paragraphs 7 and 8 above and on the assumption that, unless a
Lender notifies the Administrative Agent to the contrary, each Lender’s obligations in
relation to cash ratio deposits, Special Deposits and the Fees Regulations are the same as
those of a typical bank from its jurisdiction of incorporation with a Lending Office in the
same jurisdiction as such Lender’s Lending Office.
	 
	10.	 	The Administrative Agent shall have no liability to any Person if such determination
results in an Additional Cost Rate which over- or under-compensates any Lender and shall be
entitled to assume that the information provided by any Lender pursuant to paragraphs
3, 7 and 8 above is true and correct in all respects.
	 
	11.	 	The Administrative Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender
based on the information provided by each Lender pursuant to paragraphs 3, 7
and 8 above.
	 
	12.	 	Any determination by the Administrative Agent pursuant to this Schedule in relation
to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender
shall, in the absence of manifest error, be conclusive and binding on all parties hereto.
	 
	13.	 	The Administrative Agent may from time to time, after consultation with the Company
and the Lenders, determine and notify to all parties any amendments which are required to be
made to this Schedule in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other authority which replaces
all or any of its functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all parties hereto.





 









 





Schedule 2.01




LENDERS AND COMMITMENTS



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Percentage
	 	 	 	 	 	 	of Revolving
	Lender	 	Revolving Commitment	 	Commitments
	Bank of America, N.A.

	 	$	75,000,000	 	 	 	13.636363636	%
	JPMorgan Chase Bank, N.A.

	 	$	75,000,000	 	 	 	13.636363636	%
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.

	 	$	67,500,000	 	 	 	12.272727273	%
	U.S. Bank National Association

	 	$	62,500,000	 	 	 	11.363636364	%
	Bank of Montreal

	 	$	45,000,000	 	 	 	8.181818182	%
	The Bank of New York Mellon

	 	$	45,000,000	 	 	 	8.181818182	%
	Wells Fargo Bank, N.A.

	 	$	45,000,000	 	 	 	8.181818182	%
	Bank of the West

	 	$	35,000,000	 	 	 	6.363636364	%
	Comerica Bank

	 	$	25,000,000	 	 	 	4.545454545	%
	KeyBank National Association

	 	$	25,000,000	 	 	 	4.545454545	%
	The Northern Trust Company

	 	$	25,000,000	 	 	 	4.545454545	%
	Royal Bank of Canada

	 	$	12,500,000	 	 	 	2.272727273	%
	RBC Bank (USA)

	 	$	12,500,000	 	 	 	2.272727273	%
	TOTAL

	 	$	550,000,000	 	 	 	100.000000000	%






 









 






SCHEDULE 6.13




(Subsidiaries of the Company; Ownership of Subsidiary Stock)



SUBSIDIARIES OF THE COMPANY



	 	 	 	 	 
	 	 	 	 	STOCKHOLDER/PERCENTAGE OF
	SUBSIDIARY	 	JURISDICTION OF	 	OWNERSHIP OF OUTSTANDING
	NAME	 	FORMATION	 	SHARES***
	DALSA B.V.

	 	Netherlands
	 	Teledyne Netherlands B.V.-100%
	DALSA Digital Cinema, Inc.

	 	Canada
	 	Teledyne DALSA, Inc.- 92.5%
	DALSA Digital Cinema Holdings, Inc.

	 	Delaware
	 	DALSA Digital Cinema, Inc.- 100%
	DALSA Digital Cinema LA Ltd.

	 	California
	 	DALSA Digital Cinema Holdings Inc.- 100%
	DALSA KK

	 	Japan
	 	Teledyne DALSA, Inc.-100%
	DALSA GmbH

	 	Germany
	 	Teledyne DALSA, Inc.- 100%
	Teledyne DALSA Asia-Pacific Ltd.

	 	Ontario, Canada
	 	Teledyne DALSA, Inc.-100%
	Ensambles de Precision S.A. de C.V.

	 	Mexico
	 	Teledyne Technologies Incorporated — 99%; Teledyne Instruments, Inc.- 1%
	Gulfcoast Aerospace Alliance, LLC

	 	Delaware
	 	Teledyne Brown Engineering- Inc.- 50%
	Intelek Limited

	 	United Kingdom
	 	Teledyne Technologies Incorporated- 100%
	Intelek, Inc.

	 	Delaware
	 	Intelek Limited- 100%
	Intelek Properties Limited

	 	United Kingdom
	 	Intelek Limited-100%
	Hurricane Acquisition Company

	 	California
	 	Teledyne Technologies Incorporated- 100%
	Maple Netherlands C.V.

	 	Netherlands
	 	Teledyne Technologies Incorporated- 100%
	Teledyne Netherlands BV

	 	Netherlands
	 	Maple Netherlands CV- 100%
	Teledyne ODI, Inc.

	 	Delaware
	 	Teledyne Instruments, Inc.- 100%
	Teledyne Oil and Gas Limited**

	 	United Kingdom
	 	Teledyne ODI, Inc.- 100%
	Ocean Design Ltda.

	 	Brazil
	 	Teledyne ODI, Inc.-99.33%
	 

	 	 	 	Teledyne Oil and Gas Limited.-.67%
	Reynolds Industries Limited

	 	United Kingdom
	 	Teledyne Limited-100%.






 









 






	 	 	 	 	 
	 	 	 	 	STOCKHOLDER/PERCENTAGE OF
	SUBSIDIARY	 	JURISDICTION OF	 	OWNERSHIP OF OUTSTANDING
	NAME	 	FORMATION	 	SHARES***
	Teledyne RD Technologies (Shanghai) Co. Ltd.

	 	China
	 	Teledyne RD Instruments, Inc. — 100%
	Teledyne Australia Pty Ltd

	 	Australia
	 	Teledyne Wireless, LLC- 100%
	Teledyne Advanced Pollution Instrumentation, Inc.

	 	California
	 	Teledyne Technologies Incorporated — 100%
	Teledyne Aerospace, LLC

	 	Florida
	 	Teledyne Brown Engineering, Inc.- 50%
	Teledyne Benthos, Inc.

	 	Massachusetts
	 	Teledyne Instruments, Inc.- 100%
	Teledyne C.M. L. Group Limited

	 	United Kingdom
	 	Intelek Properties Limited- 100%
	Teledyne CollaborX, Inc.

	 	Colorado
	 	Teledyne Brown Engineering, Inc.- 100%
	Teledyne Brown Engineering, Inc.

	 	Delaware
	 	Teledyne Technologies Incorporated —100%
	Teledyne Brown Netherlands, Inc.

	 	Delaware
	 	Teledyne Brown Engineering, Inc. — 100%
	Teledyne Continental Motors, Inc.*

	 	Delaware
	 	Teledyne Technologies Incorporated- 100%
	Teledyne Controls Wichita, Inc.

	 	Delaware
	 	Teledyne Technologies Incorporated — 100%
	Teledyne Cormon Limited**

	 	United Kingdom
	 	Teledyne Limited- 100%
	Teledyne Cormon Technology Limited**

	 	United Kingdom
	 	Teledyne Limited- 100%
	Teledyne Cormon, Inc.

	 	Texas
	 	Teledyne Instruments, Inc.- 100%
	Teledyne Cougar, Inc.

	 	California
	 	Teledyne Technologies Incorporated — 100%
	Teledyne DALSA, Inc.

	 	Ontario, Canada
	 	Teledyne Netherlands BV-100%
	Teledyne DALSA Colorado Springs, Inc.

	 	Delaware
	 	Teledyne DALSA Holdings (USA), Inc.- 100%
	Teledyne DALSA Industrial Products, Inc.

	 	Delaware
	 	Teledyne DALSA, Inc.- 100%






 









 






	 	 	 	 	 
	 	 	 	 	STOCKHOLDER/PERCENTAGE OF
	SUBSIDIARY	 	JURISDICTION OF	 	OWNERSHIP OF OUTSTANDING
	NAME	 	FORMATION	 	SHARES***
	Teledyne DALSA Holdings (USA), Inc.

	 	Delaware
	 	Teledyne DALSA, Inc.- 100%
	Teledyne DALSA Semiconductor, Inc.

	 	Canada
	 	Teledyne DALSA, Inc.- 100%
	Teledyne Defence Limited

	 	United Kingdom
	 	Teledyne Limited- 100%
	Teledyne Energy Systems, Inc.

	 	Delaware
	 	Teledyne Technologies Incorporated — 86%****
	Teledyne France

	 	France
	 	Teledyne RD Instruments, Inc. — 100%
	Teledyne Gavia ehf.

	 	Iceland
	 	Teledyne Benthos, Inc.- 100%
	Teledyne Germany GmbH

	 	Germany
	 	Teledyne Tekmar Company — 100%
	Teledyne Instruments, Inc.

	 	Delaware
	 	Teledyne Technologies Incorporated — 100%
	Teledyne Isco, Inc.

	 	Nebraska
	 	Teledyne Technologies Incorporated — 100%
	Teledyne Labtech Limited

	 	United Kingdom
	 	Intelek Limited-100%
	Teledyne Lighting and Display Products, Inc.

	 	Nevada
	 	Teledyne Technologies Incorporated — 100%
	Teledyne Limited

	 	United Kingdom
	 	Teledyne Technologies Incorporated — 100%
	Teledyne Licensing, LLC

	 	Delaware
	 	Teledyne Scientific & Imaging, LLC- 100%
	Teledyne Mattituck Services, Inc.*

	 	Delaware
	 	Teledyne Technologies Incorporated — 100%
	Teledyne Monitor Labs, Inc.

	 	Delaware
	 	Teledyne Instruments, Inc. — 100%
	Teledyne Monitor Labs P.R., Inc.

	 	Puerto Rico
	 	Teledyne Monitor Labs, Inc.- 100%
	Teledyne Odom Hydrographic, Inc.

	 	Louisiana
	 	Teledyne RD Instruments, Inc.- 100%
	Teledyne Optimum Optical Systems, Inc.

	 	California
	 	Teledyne Scientific & Imaging, LLC- 100%
	Teledyne Paradise Datacom Limited

	 	United Kingdom
	 	Intelek Limited-100%
	Teledyne Paradise Datacom, LLC

	 	United Kingdom
	 	Intelek, Inc.-100%
	Teledyne Properties Limited**

	 	United Kingdom
	 	Teledyne Limited- 100%
	Teledyne Rad-icon Imaging Corp.

	 	California
	 	Teledyne DALSA, Inc.- 100%






 









 






	 	 	 	 	 
	 	 	 	 	STOCKHOLDER/PERCENTAGE OF
	SUBSIDIARY	 	JURISDICTION OF	 	OWNERSHIP OF OUTSTANDING
	NAME	 	FORMATION	 	SHARES***
	Teledyne RD Instruments, Inc.

	 	Delaware
	 	Teledyne Technologies Incorporated— 100%
	Teledyne Reynolds, Inc.

	 	California
	 	Teledyne Technologies Incorporated— 100%
	Teledyne RISI, Inc.

	 	California
	 	Teledyne Reynolds, Inc. — 100%
	Teledyne Scientific & Imaging, LLC

	 	Delaware
	 	Teledyne Brown Engineering, Inc.-100%
	Teledyne SG Brown Limited

	 	United Kingdom
	 	Teledyne Limited- 100%
	Teledyne Storm Products, Inc.

	 	California
	 	Teledyne Reynolds, Inc.- 100%
	Teledyne Singapore Private Limited

	 	Singapore
	 	Teledyne Technologies Incorporated- 100%
	Teledyne Solutions, Inc.

	 	Alabama
	 	Teledyne Brown Engineering, Inc.-100%
	Teledyne Technologies International Corp.

	 	Delaware
	 	Teledyne Technologies Incorporated — 100%
	Teledyne Technologies (Bermuda) Limited

	 	Bermuda
	 	Teledyne Technologies Incorporated — 100%
	Teledyne Tekmar Company

	 	Ohio
	 	Teledyne Instruments, Inc.-100%
	Teledyne TSS Limited

	 	United Kingdom
	 	Teledyne SG Brown Limited- 100%
	Teledyne Wireless, LLC

	 	Delaware
	 	Teledyne Technologies Incorporated — 100%
	DALSA (Shanghai) Trading Co. Ltd.

	 	China
	 	Teledyne DALSA, Inc.- 100%








 




			
	*	 	subject to pending sale
	 
	**	 	to be liquidated
	 
	***	 	except as noted, there are no options, warrants, rights of conversion or purchase or other
similar rights with respect ownership of shares
	 
	****	 	Teledyne Technologies Incorporated has a right of first refusal to buy the remaining shares
subject to a bona fide third party purchase offer, drag along rights and a registration rights
agreement with the minority shareholders.




 









 










Schedule 6.20

COLLECTIVE BARGAINING AGREEMENTS



Agreement between Teledyne Continental Motors and International Union of United Automobile,
Aerospace and Agricultural Implement Workers of America. Expires March 20, 2013 and covers
approximately 250 active employees at Teledyne Continental Motors piston engine manufacturing
facility in Mobile, Alabama. (1)
Agreement between Teledyne Turbine Engines and International Union of United Automobile,
Aerospace and Agricultural Implement Workers of America. Expires November 18, 2014 and covers
approximately 10 active employees at Teledyne Turbine Engines facility in Toledo, Ohio.






 




			
	(1)	 	This agreement and the underlying active employees will be included in the pending
sale of the Company’s piston engine business.




 









 










SCHEDULE 8.01

to Credit Agreement

(Liens Existing on Closing Date)



1. Capital Leases (Real Property):




Lessor: Shelby Holdings Limited

Lessee: Teledyne Limited

Property: Units 26, 27, and 28 Timberlaine Trading Estate, Worthing.




Lessor: Vantage Point Business Village Ltd

Lessee: Teledyne Limited

Property: The Teledyne Building, Vantage Point Business Village, Gloucestershire




Lessor: Norwich Union Life and Pensions

Lessee: Teledyne Limited

Property: Navigation House, Canal View toad, Newbury




Lessor: Greenhills Property No.46 Limited

Lessee: Teledyne TSS Limited

Property: 1 Blackmoor Lane, Croxley Green Business Park Watford, Herfordshire, WD 1 8 8GA




Lessor: Bollinwater Estates LLP

Lessee: Teledyne C.M.L. Group Limited

Property: 333-359 Cleveland Street, Birkenhead




Lessor: Bollinwater Estates LLP

Lessee: Teledyne C.M.L. Group Limited

Property: 256-296 Price Street, Birkenhead




Lessor: Tebay Road LLP.

Lessee: Teledyne C.M.L. Group Limited

Property: Unit A, Tebay Road, Bromborough




Lessor: Huw James and Vivian Bines

Lessee: Teledyne Labtech Limited

Property: Units 5 and 6 Presteigne Industrial Estate, Presteigne, Powys



2, Liens existing on the Closing Date of the type described in Section 8.01(b) through
(m) and (q) through (t).



3. Equipment leases or purchases entered into in the ordinary course of business and
existing on the Closing Date, including the following at the Company and the other
Loan Parties with active UCC or PPSA filings:



TELEDYNE TECHNOLOGIES INCORPORATED






 









 








	 	 	 	 	 
	Secured Party	 	JURISDICTION	 	Collateral
	Canon Financial Services

	 	CA, Secretary of State
	 	Equipment
	Tennant Financial Services

	 	DE, Secretary of State
	 	Equipment
	E.I. du Pont de Nemours and Company

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp Equipment Finance Group

	 	DE, Secretary of State
	 	Equipment
	US Bancorp Equipment Finance Group

	 	DE, Secretary of State
	 	Equipment






TELEDYNE BROWN ENGINEERING, INC.




	 	 	 	 	 
	Secured Party	 	JURISDICTION	 	Collateral
	Canon Financial Services, Inc.

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	Marlin Business Bank

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	Toyota Motor Credit Corporation

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	Crown Credit Company

	 	DE, Secretary of State
	 	Equipment
	Air Liquide Industrial U.S. LP

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment






 









 






	 	 	 	 	 
	Secured Party	 	JURISDICTION	 	Collateral
	Mazak Corporation

	 	DE, Secretary of State
	 	Equipment
	US Bancorp

	 	DE, Secretary of State
	 	Equipment






TELEDYNE INSTRUMENTS, INC.




	 	 	 	 	 
	Secured Party	 	JURISDICTION	 	Collateral
	Haas Factory Outlet, LLC

	 	DE, Secretary of State
	 	Equipment
	Ricoh Americas Corporation

	 	DE, Secretary of State
	 	Equipment
	Anixter, Inc.

	 	DE, Secretary of State
	 	Equipment






TELEDYNE SCIENTIFIC & IMAGING, LLC




	 	 	 	 	 
	Secured Party	 	JURISDICTION	 	Collateral
	Air Liquide Industrial U.S. LP

	 	DE, Secretary of State
	 	Equipment
	Canon Financial Services

	 	DE, Secretary of State
	 	Equipment






TELEDYNE DALSA, INC.




	 	 	 	 	 
	Secured Party	 	JURISDICTION	 	Collateral
	Xerox Canada Ltd

	 	Ontario, Canada (PPSA)
	 	Equipment, Other
	Xerox Canada Ltd

	 	Ontario, Canada (PPSA)
	 	Equipment, Other
	Financialinx Corporation

	 	Ontario, Canada (PPSA)
	 	Consumer Goods, Equipment, Other, Motor Vehicle Included
	Financialinx Corporation

	 	Ontario, Canada (PPSA)
	 	Consumer Goods, Equipment, Other, Motor Vehicle Included
	Compagnie de Services Financiers Hewlett-

	 	Ontario, Canada (PPSA)
	 	Equipment, Other






 









 






	 	 	 	 	 
	Secured Party	 	JURISDICTION	 	Collateral
	Packard Canada
	 	 	 	 
	Xerox Canada Ltd

	 	Ontario, Canada (PPSA)
	 	Equipment, Other







 











 





Schedule 8.02

INVESTMENTS




	 	 	 	 	 	 	 	 	 
	 	 	Teledyne	 	Type of	 	Maturity	 	 
	Issuer	 	Company Name	 	Investments	 	Date	 	Amount
	JP Morgan

	 	Teledyne Technologies Incorporated
	 	Money Market
	 	N/A
	 	$500,000**
	JP Morgan

	 	Teledyne Energy Systems, Inc*
	 	Money Market
	 	N/A
	 	$1,160,000**
	Optical Alchemy, Inc.

	 	Teledyne Scientific & Imaging, LLC
	 	Common Stock
	 	N/A
	 	$4,697,164***
	Optical Alchemy, Inc.

	 	Teledyne Scientific & Imaging, LLC
	 	Preferred Stock
	 	N/A
	 	$3,000,000****
	N.I. Medical Ltd.

	 	Teledyne Brown Engineering, Inc.
	 	Common Stock
	 	N/A
	 	134,044 shares*****
	PhotoMedix, Inc.

	 	Teledyne Reynolds, Inc.
	 	Common Stock
	 	N/A
	 	1 share Teledyne
	Aerospace, LLC

	 	Teledyne Brown Engineering, Inc.
	 	LLC Interest
	 	N/A
	 	50% of J.V. Gulfcoast
	Aerospace Alliance, LLC

	 	Teledyne Brown Engineering, Inc.
	 	LLC Interest
	 	N/A
	 	50% of J.V.








 




			
	*	 	Teledyne Energy Systems, Inc. is 86% owned by Teledyne Technologies Incorporated
	 
	**	 	Amounts are as of February 22, 2011
	 
	***	 	Represents 790.139 shares or 16.3% of shares outstanding on a fully diluted. Teledyne
Scientific & Imaging, LLC has the right to purchase 51% of the shares of Common Stock on March 1,
2013 and the right to purchase 100% of the shares of Common Stock on March 1, 2015. The
shareholders agreement also contains rights of first refusal and co-sale rights.
	 
	****	 	Represents 1,000 preferred shares or 100% of preferred shares outstanding
	 
	*****	 	Represents 1.38% of shares outstanding on a fully diluted basis as of November 16, 2006





 









 





Schedule 11.02




CERTAIN ADDRESSES FOR NOTICES



LOAN PARTIES:




Borrower:




Teledyne Technologies Incorporated

Attn: Stephen F. Blackwood

1049 Camino Dos Rios

Thousand Oaks, California 91360

Phone: 805-373-4415

Facsimile: 805-373-4450

Email: sblackwood@teledyne.com




-with a copy to (which shall not constitute notice)




Teledyne Technologies Incorporated

Attn: Melanie S. Cibik

1049 Camino Dos Rios

Thousand Oaks, California 91360

Phone: 805-373-4605

Facsimile: 805-373-4610

Email: mcibik@teledyne.com




-and




Robert Vernon, Esq.

McGuireWoods LLP

201 North Tryon Street, Suite 3000

Charlotte, North Carolina 28202

Phone: 704-373-8850

Facsimile: 704-353-6175

Email: rvernon@mcguirewoods.com




Guarantors:




Teledyne Brown Engineering, Inc.

Attn: Janice L. Hess

300 Sparkman Drive NW

Huntsville, Alabama 35805

Phone: 256-726-1414

Facsimile: 256-726-3114

Email: jan.hess@tbe.com




 









 





-with a copy to (which shall not constitute notice)




Teledyne Technologies Incorporated

Attn: Melanie S. Cibik

1049 Camino Dos Rios

Thousand Oaks, California 91360

Phone: 805-373-4605

Facsimile: 805-373-4610

Email: mcibik@teledyne.com




-and




Robert Vernon, Esq.

McGuireWoods LLP

201 North Tryon Street, Suite 3000

Charlotte, North Carolina 28202

Phone: 704-373-8850

Facsimile: 704-353-6175

Email: rvernon@mcguirewoods.com




Teledyne Instruments, Inc.

Attn: Stephen F. Blackwood

1049 Camino Dos Rios

Thousand Oaks, California 91360

Phone: 805-373-4415

Facsimile: 805-373-4450

Email: sblackwood@teledyne.com




-with a copy to (which shall not constitute notice)




Teledyne Technologies Incorporated

Attn: Melanie S. Cibik

1049 Camino Dos Rios

Thousand Oaks, California 91360

Phone: 805-373-4605

Facsimile: 805-373-4610

Email: mcibik@teledyne.com




-and




Robert Vernon, Esq.

McGuireWoods LLP

201 North Tryon Street, Suite 3000

Charlotte, North Carolina 28202

Phone: 704-373-8850

Facsimile: 704-353-6175

Email: rvernon@mcguirewoods.com




 









 





Teledyne Scientific & Imaging, LLC

Attn: Stephen F. Blackwood

1049 Camino Dos Rios

Thousand Oaks, California 91360

Phone: 805-373-4415

Facsimile: 805-373-4450

Email: sblackwood@teledyne.com




-with a copy to (which shall not constitute notice)




Teledyne Technologies Incorporated

Attn: Melanie S. Cibik

1049 Camino Dos Rios

Thousand Oaks, California 91360

Phone: 805-373-4605

Facsimile: 805-373-4610

Email: mcibik@teledyne.com




-and




Robert Vernon, Esq.

McGuireWoods LLP

201 North Tryon Street, Suite 3000

Charlotte, North Carolina 28202

Phone: 704-373-8850

Facsimile: 704-353-6175

Email: rvernon@mcguirewoods.com




Designated Borrowers:




Teledyne DALSA, Inc.

Attn: Wajid Ali

605 McMurray Road

Waterloo, Ontario, Canada N2V 2E9

Phone: 519- 886-6001 (ext. 2364)

Facsimile: 519-886-5660

Email: Wajid.Ali@teledynedalsa.com




-with a copy to (which shall not constitute notice)




Teledyne Technologies Incorporated

Attn: Melanie S. Cibik

1049 Camino Dos Rios

Thousand Oaks, California 91360

Phone: 805-373-4605

Facsimile: 805-373-4610

Email: mcibik@teledyne.com

-and




 









 





Robert Vernon, Esq.

McGuireWoods LLP

201 North Tryon Street, Suite 3000

Charlotte, North Carolina 28202

Phone: 704-373-8850

Facsimile: 704-353-6175

rvernon@mcguirewoods.com




Teledyne Limited




Attn: Harry T. Barnshaw

9-13 Napier Road

Wardpark North Industrial Estate

Cumbernauld, Scotland G68 0EF

Phone: 44(0) 1236 733 700

Email: hbarnshaw@teledyne.com




-with a copy to (which shall not constitute notice)




Teledyne Technologies Incorporated

Attn: Melanie S. Cibik

1049 Camino Dos Rios

Thousand Oaks, California 91360

Phone: 805-373-4605

Facsimile: 805-373-4610

Email: mcibik@teledyne.com




-and




Robert Vernon, Esq.

McGuireWoods LLP

201 North Tryon Street, Suite 3000

Charlotte, North Carolina 28202

Phone: 704-373-8850

Facsimile: 704-353-6175

rvernon@mcguirewoods.com




ADMINISTRATIVE AGENT:




Notices (other than Requests for Extensions of Credit):




Bridgett J. Manduk

Bank of America Merrill Lynch

1455 Market Street, 5th Floor

Mail Code: CA5-701-05-19

San Francisco, CA 94103




Phone: 415-436-1097

Facsimile: 415-504-5011

Email: bridgett.manduk@baml.com




 









 





-with a copy to




Mathew J. (Matt) Griesbach

Bank of America Merrill Lynch

Bank of America Plaza

333 South Hope Street, 24th Floor

Mail Code: CA9-193-24-05

Los Angeles, CA 90071




Phone: 213-621-8737

Facsimile: 415-343-0981

Email: mathew.j.griesbach@baml.com




For Payments and Requests for Extensions of Credit:




G.K. Lapitan

Bank of America Merrill Lynch

Building B

2001 Clayton Road, 2nd Floor

Mail Code: CA4-702-02-25

Concord, CA 94520




Phone: 925-675-8205

Facsimile: 888-969-9170

Email: g_k.lapitan@baml.com




Bank of America, N.A., as L/C Issuer:




Tai Anh Lu

Bank of America Merrill Lynch

1000 W. Temple Street, 7th Floor

Mail Code: CA 9-705-07-05

Los Angeles, CA 90012




Phone: 213-481-7840

Facsimile: 213-457-8841




Email: tai_anh.lu@baml.com





 











 





EXHIBIT A




FORM OF LOAN NOTICE



Date: ________________, 201__




	 	 	 

	To:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Credit Agreement (as amended, modified, supplemented and extended from
time to time, the “Credit Agreement”) dated as of February 25, 2011,
among Teledyne Technologies Incorporated, a Delaware corporation (the
“Company”), the Guarantors identified therein, the Designated
Borrowers identified therein, the Lenders identified therein, and Bank
of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender. Capitalized terms used but not otherwise defined herein have
the meanings provided in the Credit Agreement.






Ladies and Gentlemen:




The undersigned hereby requests (select one):





	 	o	 	A Borrowing of Revolving Loans
	 
	 	o	 	A conversion or continuation of Revolving Loans






	 	1.	 	On _______________, 201_ (which is a Business Day).
	 
	 	2.	 	In the amount of $______________.1
	 
	 	3.	 	Comprised of ________.2
[Type of Loan requested]
	 
	 	4.	 	For Eurocurrency Rate Loans: with an Interest Period of .
	 
	 	5.	 	Applicable Currency:___________________________.3
	 
	 	6.	 	On behalf of ____________________________ [if applicable, insert name of Designated
Borrower].





With respect to any Borrowing requested herein, the Company hereby represents and warrants that (i)
such request complies with the requirements of the proviso to the first sentence of Section 2.01 of
the Credit Agreement and (ii) in the case of a Borrowing, each of the conditions set forth in
Section 5.02 of the Credit Agreement has been satisfied on and as of the date of such Borrowing.






 




			
	1	 	Minimum amounts of (a) $3,000,000 and a whole
multiple of $500,000 in excess thereof, in the case of Eurocurrency Rate Loans
and (b) $1,000,000 and a whole multiple of $500,000 in excess thereof, in the
case of Base Rate Loans.
	 
	2	 	Select Eurocurrency Rate or Base Rate, as
appropriate.
	 
	3	 	Select Dollars, Euros, Sterling, or Canadian
Dollars (or such other currency that has been approved pursuant to Section 1.05
of the Credit Agreement), as appropriate.





 









 





	 	 	 	 	 	 	 

	 	 	TELEDYNE TECHNOLOGIES INCORPORATED,

a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 









 







EXHIBIT B




FORM OF SWING LINE LOAN NOTICE



Date: __________, 201_




	 	 	 

	To:

	 	Bank of America, N.A., as Swing Line Lender
	 
	 	 
	Cc:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Credit Agreement (as amended, modified, supplemented
and extended from time to time, the “Credit
Agreement”) dated as of February 25, 2011 among
Teledyne Technologies Incorporated, a Delaware
corporation (the “Company”), the Guarantors
identified therein, the Designated Borrowers
identified therein, the Lenders identified therein
and Bank of America, N.A., as Administrative Agent,
L/C Issuer and Swing Line Lender. Capitalized terms
used but not otherwise defined herein have the
meanings provided in the Credit Agreement.






Ladies and Gentlemen:




The undersigned hereby requests a Swing Line Loan:





	1.	 	On __________ , 201__ (a Business Day).
	 
	2.	 	In the amount of $_________.





With respect to such Borrowing of Swing Line Loans, the Company hereby represents and warrants that
(i) such request complies with the requirements of the proviso to the first sentence of Section
2.04(a) of the Credit Agreement and (ii) each of the conditions set forth in Section 5.02 of the
Credit Agreement has been satisfied on and as of the date of such Borrowing of Swing Line Loans.




	 	 	 	 	 	 	 

	 	 	TELEDYNE TECHNOLOGIES INCORPORATED,

a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 









 





EXHIBIT C-1




FORM OF REVOLVING NOTE



____________, 201__




     FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to the
order of _____________________ or registered assigns (the “Lender”), in accordance with the
provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Revolving
Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement (as
amended, modified, supplemented and extended from time to time, the “Credit Agreement”)
dated as of February 25, 2011 among the Borrower, the Guarantors identified therein, the Designated
Borrowers identified therein, the Lenders identified therein, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender. Capitalized terms used but not otherwise
defined herein have the meanings provided in the Credit Agreement.



     The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan
from the date of such Revolving Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Credit Agreement. All payments of principal and
interest shall be made to the Administrative Agent for the account of the Lender in the applicable
currency in Same Day Funds at the Administrative Agent’s Office for such currency. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon
demand, from the due date thereof until the date of actual payment (and before as well as after
judgment) computed at the per annum rate set forth in the Credit Agreement.



     This Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. Upon the occurrence and continuation of one or more of the Events of Default specified in
the Credit Agreement, all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable all as provided in the Credit Agreement. Revolving
Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach schedules to this Note
and endorse thereon the date, amount and maturity of its Revolving Loans and payments with respect
thereto.



     The Borrower, for itself, its successors and assigns, hereby waives presentment, protest and
demand and notice of protest, demand, dishonor and nonpayment of this Note.



     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.



	 	 	 	 	 
	 	[TELEDYNE TECHNOLOGIES INCORPORATED,a

Delaware corporation]/



[APPLICABLE DESIGNATED BORROWER]

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




 









 





EXHIBIT C-2




FORM OF SWING LINE NOTE



____________, 20__




FOR VALUE RECEIVED, the undersigned (the “Company”), hereby promises to pay to the order of
_____________________ or registered assigns (the “Swing Line Lender”), in accordance with
the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Swing
Line Loan from time to time made by the Swing Line Lender to the Company under that certain Amended
and Restated Credit Agreement (as amended, modified, supplemented and extended from time to time,
the “Credit Agreement”) dated as of February 25, 2011 among the Company, the Guarantors
identified therein, the Designated Borrowers identified therein, the Lenders identified therein and
Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. Capitalized
terms used but not otherwise defined herein have the meanings provided in the Credit Agreement.




The Company promises to pay interest on the unpaid principal amount of each Swing Line Loan from
the date of such Swing Line Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Credit Agreement. All payments of principal and
interest shall be made to the Administrative Agent for the account of the Swing Line Lender in
Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not
paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand,
from the due date thereof until the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Credit Agreement.




This Swing Line Note is the Swing Line Note referred to in the Credit Agreement, is entitled to the
benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this Swing Line Note shall
become, or may be declared to be, immediately due and payable all as provided in the Credit
Agreement. Swing Line Loans made by the Swing Line Lender shall be evidenced by one or more loan
accounts or records maintained by the Swing Line Lender in the ordinary course of business. The
Swing Line Lender may also attach schedules to this Swing Line Note and endorse thereon the date,
amount and maturity of its Swing Line Loans and payments with respect thereto.




The Company, for itself, its successors and assigns, hereby waives presentment, protest and demand
and notice of protest, demand, dishonor and nonpayment of this Swing Line Note.




THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.




	 	 	 	 	 	 	 

	 	 	TELEDYNE TECHNOLOGIES INCORPORATED,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 






 









 





EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE



Financial Statement Date: __________, 20__




	 	 	 

	To:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Credit Agreement (as amended, modified, supplemented and extended from
time to time, the “Credit Agreement”) dated as of February 25, 2011
among Teledyne Technologies Incorporated, a Delaware corporation (the
“Company”), the Guarantors identified therein, the Designated
Borrowers identified therein, the Lenders identified therein, and Bank
of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender. Capitalized terms used but not otherwise defined herein have
the meanings provided in the Credit Agreement.






Ladies and Gentlemen:




The undersigned Responsible Officer hereby certifies as of the date hereof that [he/she] is the
_______________ of the Company, and that, in [his/her] capacity as such, [he/she] is authorized to
execute and deliver this Certificate to the Administrative Agent on the behalf of the Company, and
that:




[Use following paragraph 1 for fiscal year-end financial statements:]




[1. Attached hereto as Schedule 1 are the year-end audited financial statements required by
Section 7.01(a) of the Credit Agreement for the fiscal year of the Company ended as of the above
date, together with the report and opinion of an independent certified public accountant required
by such section.]




[Use following paragraph 1 for fiscal quarter-end financial statements:]




[1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 7.01(b) of the Credit Agreement for the fiscal quarter of the Company ended as of the above
date. Such financial statements fairly present in all material respects the financial condition,
results of operations and cash flows of the Company and its Subsidiaries in accordance with GAAP as
at such date and for such period, subject only to normal year-end audit adjustments and the absence
of footnotes.]




2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has
made, or has caused to be made, a detailed review of the transactions and condition (financial or
otherwise) of the Company during the accounting period covered by the attached financial
statements.




3. No Default or Event of Default exists under the Credit Agreement.




4. The representations and warranties of the Loan Parties contained in the Credit Agreement or any
other Loan Document, are true and correct in all material respects on and as of the date hereof,
except to the extent that such representations and warranties specifically refer to an earlier
date, in which case they are true and correct in all material respects as of such earlier date, and
except that for purposes of this Compliance Certificate, the representations and warranties
contained in subsections (a) and (b) of Section 6.05 of the Credit Agreement shall be deemed to




 









 








refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 7.01 of the Credit Agreement, including the statements in connection with which this
Compliance Certificate is delivered.




5. The financial covenant analyses and information set forth on Schedule 2 hereto are true
and accurate on and as of the date of this Certificate.




     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of __________, 201.



	 	 	 	 	 	 	 

	 	 	TELEDYNE TECHNOLOGIES INCORPORATED,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 






 









 





Schedule 2




	 	 	 	 	 	 	 	 	 	 	 

	 	1.	 	 	Consolidated Net Debt to EBITDA Ratio	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	(a)	 	Consolidated Net Debt	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(i)
	 	Consolidated Funded Indebtedness

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(ii)
	 	unencumbered cash and Cash Equivalents
of the Company and its Domestic Subsidiaries
in excess of $25,000,000, provided that the
Total Revolving Outstandings are less than
$100,000,000

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(iii)
	 	Consolidated Net Debt
[(i) — (ii)]

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	(b)	 	Consolidated EBITDA	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(i)
	 	Consolidated Net Income

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(ii)
	 	Consolidated Interest Charges

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(iii)
	 	federal, state, local and foreign income taxes
payable by the Company and its Subsidiaries

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(iv)
	 	depreciation and amortization expense

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(v)
	 	non-cash items that reduce Consolidated Net Income

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(vi)
	 	reasonably documented fees and expenses paid or
payable in cash to unaffiliated third parties in connection
with the transactions contemplated hereby and with any
other issuances of debt or equity permitted hereby,
whether or not such issuances are successful

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(vii)
	 	reasonably documented fees and expenses paid or
payable in cash to unaffiliated third parties in connection
with Acquisitions or dispositions permitted hereby,
whether or not such acquisitions or dispositions are
successful

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(viii)
	 	Consolidated EBITDA
[(i) + (ii) + (iii) + (iv) + (v) + (vi) + (vii)]

	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	(c)	 	Consolidated Net Debt to EBITDA Ratio
[(a)(iii) / (b)(viii)] 	 	__________:1.0
	 	 	 	 	 	 	 	 	 
	 	 
	 	2.	 	 	Consolidated Interest Coverage Ratio	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	(a)	 	Consolidated EBITDA (1(b)(viii) above)	 	$___________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	(b)	 	Consolidated Interest Charges	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(i)
	 	all interest, premium payments, debt discount,
fees, charges and related expenses of the Company
and its Subsidiaries in connection with Indebtedness
(including capitalized interest and other fees and
charges incurred under any asset securitization program)
or in connection with the deferred purchase price of
assets

	 	$__________





 









 







	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	(ii)
	 	the portion of rent expense of the Company and
its Subsidiaries with respect to such period under
Capital Leases or Synthetic Leases that is treated as
interest 
	 	$__________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	(iii)
	 	Consolidated Interest Charges
[(i) + (ii)]

	 	$__________
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	(c)	 	Consolidated Interest Coverage Ratio
[(a) / (b)(iii)]	 	_________:1.0







 











 





EXHIBIT E




FORM OF ASSIGNMENT AND ASSUMPTION



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



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the attached Standard Terms and Conditions and the Credit Agreement, as of
the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the
Assignor’s rights and obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including, without limitation, Letters of Credit,
Guarantees and Swing Line Loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the
Assignor.



	 	 	 	 	 

	1.

	 	Assignor:
	 	____________________
	 
	 	 	 	 
	2.

	 	Assignee:
	 	____________________
	 

	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]4]
	 
	 	 	 	 
	3.

	 	Company:
	 	Teledyne Technologies Incorporated, a Delaware corporation
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	Bank of America, N.A., as the administrative agent under the Credit Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	Credit Agreement dated as of February 25, 2011 among Company, the Guarantors, the Designated
Borrowers identified therein, the Lenders party thereto and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender








 




			
	4	 	Select as applicable.





 









 





	 	 	 	 	 	 	 	 	 

	 

	 	 	6.	 	 	Assigned Interest:
	 	 






	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	 
	 	 	Commitment/Loans	 	Commitment/Loans	 	Percentage Assigned of
	Facility Assigned	 	for all Lenders	 	Assigned1	 	Commitment/Loans2
	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 

	 

	 	 	7.	 	 	Trade Date:
	 	__________________3
	 
	 	 	 	 	 	 	 	 
	 

	 	 	8.	 	 	Effective Date:
	 	__________________4





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




	 	 	 	 	 	 	 

	ASSIGNOR:	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	ASSIGNEE:	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






[Consented to and]5 Accepted:




	 	 	 	 	 

	BANK OF AMERICA, N.A., as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 





[Consented to:]6



TELEDYNE TECHNOLOGIES INCORPORATED






 




			
	1	 	Amount to be adjusted by the counterparties to
take into account any payments or prepayments made between the Trade Date and
the Effective Date.
	 
	2	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	3	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.
	 
	4	 	To be inserted by Administrative Agent and
shall be the effective date of recordation of transfer in the register
therefor.
	 
	5	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	6	 	To be added only if the consent of the
Company is required by the terms of the Credit Agreement.





 









 





	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	[Consented to:] 7
	 
	 	 	 	 
	BANK OF AMERICA, N.A., as L/C Issuer and Swing Line Lender  
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 








 




			
	7	 	To be added only if the consent of the Swing
Line Lender and L/C Issuer is required by the terms of the Credit Agreement.





 









 





ANNEX 1




STANDARD TERMS AND CONDITIONS




          1. Representations and Warranties.




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




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets the requirements to be an assignee under Section 11.06(b)(iv) and
(vi) of the Credit Agreement (subject to such consents, if any, as may be required under Section
11.06(b)(ii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound
by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect
to decisions to acquire assets of the type represented by the Assigned Interest and either it, or
the Person exercising discretion in making its decision to acquire the Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 7.01 thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase the Assigned Interest, (vi) it has,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the Assigned Interest and
(vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.




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




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




 









 




Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with,
the law of the State of New York.




 









 





Exhibit F




FORM OF JOINDER AGREEMENT



     THIS JOINDER AGREEMENT (the “Agreement”) dated as of __________, 201__ is by and
between __________, a __________ (the “Material Subsidiary”), and Bank of America, N.A., in
its capacity as Administrative Agent under that certain Credit Agreement (as amended, modified,
supplemented and extended from time to time, the “Credit Agreement”) dated as of February
25, 2011 among Teledyne Technologies Incorporated, a Delaware corporation (the “Company”),
the Guarantors identified therein, the Designated Borrowers identified therein, the Lenders
identified therein and Bank of America, N.A., as Administrative Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.



     The Loan Parties are required by Section 7.12 of the Credit Agreement to cause the Material
Subsidiary to become a “Guarantor” thereunder. Accordingly, the Material Subsidiary hereby agrees
as follows with the Administrative Agent, for the benefit of the Lenders:



     1. The Material Subsidiary hereby acknowledges, agrees and confirms that, by its execution of
this Agreement, the Material Subsidiary will be deemed to be a party to the Credit Agreement and a
“Guarantor” for all purposes of the Credit Agreement, and shall have all of the obligations of a
Guarantor thereunder as if it had executed the Credit Agreement. The Material Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Guarantors contained in the Credit Agreement. Without limiting the
generality of the foregoing terms of this paragraph 1, the Material Subsidiary hereby jointly and
severally together with the other Guarantors, guarantees to each Lender and the Administrative
Agent, as provided in Article IV of the Credit Agreement, the prompt payment and performance of the
Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) strictly in accordance with the terms thereof.



     2. The Subsidiary hereby represents and warrants to the Administrative Agent that the Material
Subsidiary’s exact legal name and state of formation are as set forth on the signature pages
hereto.



     3. The address of the Material Subsidiary for purposes of all notices and other communications
is the address designated for all Loan Parties on Schedule 11.02 to the Credit Agreement or such
other address as the Material Subsidiary may from time to time notify the Administrative Agent in
writing.



     4. The Material Subsidiary hereby waives acceptance by the Administrative Agent and the
Lenders of the guaranty by the Material Subsidiary under Article IV of the Credit Agreement upon
the execution of this Agreement by the Material Subsidiary.



     5. This Agreement may be executed in multiple counterparts, each of which shall constitute an
original but all of which when taken together shall constitute one contract.



     6. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.



 









 




IN WITNESS WHEREOF, the Material Subsidiary has caused this Joinder Agreement to be duly executed
by its authorized officer, and the Administrative Agent, for the benefit of the Lenders, has caused
the same to be accepted by its authorized officer, as of the day and year first above written.




	 	 	 	 	 	 	 

	 	 	[MATERIAL SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






	 	 	 	 	 

	Acknowledged and accepted:	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A.,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 






 









 





EXHIBIT G




FORM OF DESIGNATED BORROWER

REQUEST AND ASSUMPTION AGREEMENT



Date: ___________, _____





			
	To:	 	Bank of America, N.A., as Administrative Agent


Ladies and Gentlemen:





     This Designated Borrower Request and Assumption Agreement is made and delivered pursuant to
Section 2.16 of that certain Credit Agreement, dated as of February 25, 2011 (as amended,
modified, supplemented and extended from time to time, the “Credit Agreement”), among
TELEDYNE TECHNOLOGIES INCORPORATED, a Delaware corporation (the “Company”), the Guarantors
identified therein, the Designated Borrowers identified therein, the Lenders identified therein,
and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender, and reference
is made thereto for full particulars of the matters described therein. All capitalized terms used
in this Designated Borrower Request and Assumption Agreement and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.



     Each of ______________________ (the “Additional Designated Borrower”) and the Company
hereby confirms, represents and warrants to the Administrative Agent and the Lenders that the
Additional Designated Borrower is a Subsidiary of the Company.



     The documents required to be delivered to the Administrative Agent under Section 2.16
of the Credit Agreement have been furnished to the Administrative Agent in accordance with the
requirements of the Credit Agreement.



     The parties hereto hereby confirm that with effect from the date hereof, the Additional
Designated Borrower shall have obligations, duties and liabilities toward each of the other parties
to the Credit Agreement identical to those which the Additional Designated Borrower would have had
if the Additional Designated Borrower had been an original party to the Credit Agreement as a
Borrower. The Additional Designated Borrower confirms its acceptance of, and consents to, all
representations and warranties, covenants, and other terms and provisions of the Credit Agreement.



     The Company acknowledges and confirms its obligations as a Guarantor of Designated Borrower
Obligations under the Credit Agreement.



     The parties hereto hereby request that the Additional Designated Borrower be entitled to
receive Loans under the Credit Agreement, and understand, acknowledge and agree that neither the
Additional Designated Borrower nor the Company on its behalf shall have any right to request any
Loans for its account unless and until the date three Business Days after the effective date
designated by the Administrative Agent in a Designated Borrower Notice delivered to the Company and
the Lenders pursuant to Section 2.16 of the Credit Agreement.



     This Designated Borrower Request and Assumption Agreement shall constitute a Loan Document
under the Credit Agreement.



     THIS DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



 









 








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



	 	 	 	 	 	 	 

	 	 	[ADDITIONAL DESIGNATED BORROWER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	TELEDYNE TECHNOLOGIES INCORPORATED,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





 









 





Exhibit H




FORM OF DESIGNATED BORROWER NOTICE



Date: ___________, _____





			
	To:	 	TELEDYNE TECHNOLOGIES INCORPORATED and

[applicable Designated Borrower]


The Lenders party to the Credit Agreement referred to below





     Ladies and Gentlemen:



     This Designated Borrower Notice is made and delivered pursuant to Section 2.14 of that
certain Credit Agreement, dated as of February 25, 2011 (as amended, modified, supplemented and
extended from time to time, the “Credit Agreement”), among TELEDYNE TECHNOLOGIES
INCORPORATED, a Delaware corporation (the “Company”), the Guarantors, the Designated
Borrowers identified therein, the Lenders from time to time party thereto, and Bank of America,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and reference is made thereto for
full particulars of the matters described therein. All capitalized terms used in this Designated
Borrower Notice and not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement.



     The Administrative Agent hereby notifies the Company and the Lenders that effective as of the
date hereof [_________________________] shall be a Designated Borrower and may receive Loans for
its account on the terms and conditions set forth in the Credit Agreement.



     This Designated Borrower Notice shall constitute a Loan Document under the Credit Agreement.



	 	 	 	 	 	 	 

	 	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title: