Exhibit
10.1


 


Execution Version




 





 


Published
CUSIP Number:  90212WAD6


 


THREE-YEAR SENIOR UNSECURED CREDIT AGREEMENT


 


 


dated as of


 


June 24, 2008


 


among


 


TYCO INTERNATIONAL FINANCE S.A.,

Borrower


 


TYCO INTERNATIONAL LTD.,

Guarantor


 


The Lenders Party Hereto


 


and


 


CITIBANK, N.A.

as Administrative Agent


 


CITIGROUP GLOBAL MARKETS INC. and BANC OF AMERICA SECURITIES LLC

as Joint Bookrunners and Joint Lead Arrangers


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Defined Terms

  	
  1

  
	
  Section 1.02

  	
  Classification of Loans and
  Borrowings

  	
  14

  
	
  Section 1.03

  	
  Terms Generally

  	
  14

  
	
  Section 1.04

  	
  Accounting Terms; GAAP

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  The Credits

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Commitments

  	
  15

  
	
  Section 2.02

  	
  Loans and Borrowings

  	
  15

  
	
  Section 2.03

  	
  Requests for Borrowings

  	
  16

  
	
  Section 2.04

  	
  [Intentionally Omitted]

  	
  17

  
	
  Section 2.05

  	
  Funding of Borrowings

  	
  17

  
	
  Section 2.06

  	
  Interest Elections

  	
  18

  
	
  Section 2.07

  	
  Termination and Reduction of
  Commitments

  	
  19

  
	
  Section 2.08

  	
  Repayment of Loans; Evidence
  of Debt

  	
  20

  
	
  Section 2.09

  	
  Prepayment of Loans

  	
  20

  
	
  Section 2.10

  	
  Fees

  	
  21

  
	
  Section 2.11

  	
  Interest

  	
  21

  
	
  Section 2.12

  	
  Calculation of Interest and
  Fees

  	
  22

  
	
  Section 2.13

  	
  Payments Generally; Pro Rata
  Treatment; Sharing of Set-offs

  	
  22

  
	
  Section 2.14

  	
  Commitment Increase

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  Representations
  and Warranties

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Organization; Powers

  	
  25

  
	
  Section 3.02

  	
  Authorization; Enforceability

  	
  25

  
	
  Section 3.03

  	
  Governmental Approvals; No
  Conflicts

  	
  26

  
	
  Section 3.04

  	
  Financial Condition; No
  Material Adverse Change

  	
  26

  
	
  Section 3.05

  	
  Litigation and Environmental
  Matters

  	
  26

  
	
  Section 3.06

  	
  Investment Company Status

  	
  27

  
	
  Section 3.07

  	
  Taxes

  	
  27

  
	
  Section 3.08

  	
  ERISA

  	
  27

  
	
  Section 3.09

  	
  Disclosure

  	
  27

  
	
  Section 3.10

  	
  Subsidiaries

  	
  28

  
	
  Section 3.11

  	
  Margin Regulations

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  Conditions

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Effective Date

  	
  28

  
				



 


i

















 


	
  Section 4.02

  	
  Each
  Borrowing

  	
  29

  
	
  Section 4.03

  	
  Each
  Commitment Increase

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  Covenants

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Financial
  Statements and Other Information

  	
  30

  
	
  Section 5.02

  	
  Existence;
  Conduct of Business

  	
  31

  
	
  Section 5.03

  	
  Maintenance
  of Properties; Insurance

  	
  32

  
	
  Section 5.04

  	
  Books and
  Records; Inspection Rights

  	
  32

  
	
  Section 5.05

  	
  Compliance
  with Laws

  	
  32

  
	
  Section 5.06

  	
  Use of
  Proceeds

  	
  33

  
	
  Section 5.07

  	
  Liens

  	
  33

  
	
  Section 5.08

  	
  Fundamental
  Changes

  	
  34

  
	
  Section 5.09

  	
  Financial
  Covenant

  	
  35

  
	
  Section 5.10

  	
  Limitation
  on Restrictions on Subsidiary Dividends and Other Distributions

  	
  35

  
	
  Section 5.11

  	
  Transactions
  with Affiliates

  	
  37

  
	
  Section 5.12

  	
  Subsidiary
  Guarantors

  	
  38

  
	
  Section 5.13

  	
  Subsidiary
  Debt

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  Events of
  Default

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of
  Default

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  The
  Administrative Agent

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  Guarantee

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  The
  Guarantee

  	
  44

  
	
  Section 8.02

  	
  Guarantee
  Unconditional

  	
  44

  
	
  Section 8.03

  	
  Discharge
  Only upon Payment in Full; Reimbursement in Certain Circumstances

  	
  45

  
	
  Section 8.04

  	
  Waiver by
  the Guarantor

  	
  45

  
	
  Section 8.05

  	
  Subrogation

  	
  45

  
	
  Section 8.06

  	
  Stay of
  Acceleration

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  Yield
  Protection, Illegality and Taxes

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Alternate
  Rate of Interest

  	
  46

  
	
  Section 9.02

  	
  Illegality

  	
  46

  
	
  Section 9.03

  	
  Increased
  Costs

  	
  47

  
	
  Section 9.04

  	
  Break
  Funding Payments

  	
  48

  
	
  Section 9.05

  	
  Taxes

  	
  48

  
	
  Section 9.06

  	
  Matters
  Applicable to all Requests for Compensation

  	
  49

  
	
  Section 9.07

  	
  Mitigation
  Obligations

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  Miscellaneous

  	
  50

  
						



 


ii

















 


	
  Section 10.01

  	
  Notices

  	
  50

  
	
  Section 10.02

  	
  Waivers;
  Amendments

  	
  51

  
	
  Section 10.03

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  52

  
	
  Section 10.04

  	
  Successors
  and Assigns

  	
  54

  
	
  Section 10.05

  	
  Survival

  	
  59

  
	
  Section 10.06

  	
  Counterparts;
  Integration; Effectiveness

  	
  59

  
	
  Section 10.07

  	
  Severability

  	
  60

  
	
  Section 10.08

  	
  Right of
  Setoff

  	
  60

  
	
  Section 10.09

  	
  Governing
  Law; Jurisdiction; Consent to Service of Process

  	
  60

  
	
  Section 10.10

  	
  Waiver of
  Jury Trial

  	
  61

  
	
  Section 10.11

  	
  Waiver of
  Immunities

  	
  61

  
	
  Section 10.12

  	
  Judgment
  Currency

  	
  62

  
	
  Section 10.13

  	
  Headings

  	
  62

  
	
  Section 10.14

  	
  Confidentiality

  	
  62

  
	
  Section 10.15

  	
  Electronic
  Communications

  	
  63

  
	
  Section 10.16

  	
  USA PATRIOT
  Act Notice

  	
  65

  



 


SCHEDULES:


 


Schedule 1.01 - Pricing Grid


 


Schedule 2.01 - Commitments


 


Schedule 5.09 - Cross Guarantees


 


Schedule 10.01 - Administrative Agent’s Office; Lender Notice Addresses


 


EXHIBITS:


 


Exhibit A - Form of Note


 


Exhibit B - Form of Assignment and Assumption


 


Exhibit C-1 - Form of opinion of general counsel of Guarantor


 


Exhibit C-2 - Form of opinion of special Luxembourg counsel


 


Exhibit C-3 - Form of opinion of special Bermuda counsel


 


Exhibit C-4 - Form of opinion of special New York counsel


 


Exhibit D - Form of Subsidiary Guaranty


 


Exhibit E - Form of Commitment Increase Request


 


iii

















 


THREE-YEAR SENIOR UNSECURED CREDIT AGREEMENT
dated as of June 24, 2008 (the “Closing Date”), among TYCO
INTERNATIONAL FINANCE S.A., a Luxembourg company (the “Borrower”), TYCO
INTERNATIONAL LTD., a Bermuda company (the “Guarantor”), the LENDERS
party hereto and CITIBANK, N.A., as Administrative Agent.


 


The parties hereto agree as follows:


 


ARTICLE
I


 


Definitions


 


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


 


“ABR”, when used in reference to any
Loan or Borrowing, means that such Loan, or the Loans comprising such
Borrowing, bear interest at a rate per annum equal to the Alternate Base Rate.


 


“Accumulated Other Comprehensive (Loss)
Income” on any date means the amount of “Accumulated Other Comprehensive
(Loss) Income” of the Guarantor and its Subsidiaries as of the end of the most
recently completed fiscal quarter of the Guarantor prior to such date of
determination determined on a Consolidated basis.


 


“Administrative Agent” means Citibank,
in its capacity as administrative agent for the Lenders under this Agreement
and the other Loan Documents, or any successor administrative agent.


 


“Administrative Agent’s Office” means
the office address, facsimile number, electronic mail address, telephone number
and account information set forth on Schedule 10.01 with respect to the
Administrative Agent or such other address, facsimile number, electronic mail
address, telephone number or account information as shall be designated by the
Administrative Agent in a notice to the Borrower and the Lenders.


 


“Affiliate” means, with respect to a
specified Person, another Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by or is under common control
with the Person specified.  For purposes
of this definition, the term “control” (including the terms “controlling”
and “under common control with”) 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.


 


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


 


1

















 


“Applicable Margin” means, with
respect to any Eurodollar Loan, either (i) at any time during which less
than 50% of the then applicable aggregate Commitments are being utilized, the
rate per annum set forth on the Pricing Grid opposite the reference to the
applicable Index Debt Rating under the heading “Applicable Margin” and under
the sub heading “Less than 50% of the then applicable Commitments utilized”, or
(ii) at any time during which 50% or more of the then applicable aggregate
Commitments are being utilized, the rate per annum set forth on the Pricing
Grid opposite the reference to the applicable Index Debt Rating under the
heading “Applicable Margin” and under the sub heading “50% or more of the then
applicable Commitments utilized”; any change in the Applicable Margin resulting
from an Index Debt Rating Change or an aggregate Commitment utilization change
shall be determined in accordance with Schedule 1.01 and shall be effective on
the date of such Index Debt Rating Change or utilization change, as the case
may be.


 


“Applicable Percentage” means, with
respect to any Lender, the percentage (rounded to the ninth decimal) of the
total Commitments in effect at any given time represented by such Lender’s then
applicable Commitment.  If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the outstanding principal amounts of the Loans made by
the respective Lenders.


 


“Approved Fund” has the meaning
assigned to such term in Section 10.04.


 


“Assignment and Assumption” means an
assignment and assumption entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 10.04), and
accepted by the Administrative Agent, in the form of Exhibit B or
any other form approved by the Administrative Agent.


 


“Assuming Lender” has the meaning
assigned to that term in Section 2.14(d).


 


“Assumption Agreement” has the meaning
assigned to that term in Section 2.14(d)(ii).


 


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


 


“Base Rate” means the rate of interest
per annum publicly announced from time to time by Citibank as its base rate or
prime rate in effect at its principal office in New York City.


 


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


 


“Borrower” has the meaning set forth
in the preamble hereto.


 


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


 


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


 


2

















 


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


 


“Change in Law” means (a) the
adoption of any law, rule or regulation after the date of this Agreement, (b) any
change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender (or, for purposes of Section 9.03(b),
by any lending office of such Lender or by such Lender’s holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.


 


“Citibank” means Citibank, N.A.


 


“Closing Date” means the date of this
Agreement.


 


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


 


“Commitment” means, with respect to
each Lender at any time, the commitment of such Lender to make Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s
Revolving Credit Exposure hereunder at such time, as such commitment may be (a) increased
from time to time pursuant to Section 2.14, (b) reduced from time to
time pursuant to Section 2.07, and (c) reduced or increased from time
to time pursuant to assignments by or to such Lender pursuant to Section 10.04.  The initial amount of each Lender’s
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Commitment, as
applicable.  The initial aggregate amount
of the Lenders’ Commitments is $500,000,000.


 


“Commitment Increase” has the meaning
assigned to that term in Section 2.14(a).


 


“Commitment Increase Notice” has the
meaning assigned to that term in Section 2.14(a).


 


“Communications” has the meaning
assigned to such term in Section 10.15.


 


“Compensation Period” has the meaning
assigned to such term in Section 2.05(b).


 


“Consolidated” refers to the
consolidation of accounts of the Guarantor and its consolidated Subsidiaries in
accordance with GAAP.


 


“Consolidated EBITDA” means, for any
fiscal period, Consolidated Net Income for such period plus the following, to
the extent deducted in calculating such Consolidated Net Income:  (a) Consolidated Interest Expense, (b) income
tax expense, (c) depreciation and amortization expense (d) any
extraordinary expenses or losses, (e) losses on sales of assets outside of
the ordinary course of business and losses from discontinued operations, (f) any
losses on the retirement of debt identified in the Consolidated statements of
cash flows and (g) any other 


 


3

















 


nonrecurring
or non-cash charges (including charges incurred in respect of the
Transactions), and minus, to the extent included in calculating such
Consolidated Net Income for such period, the sum of (a) any extraordinary
income or gains, (b) gains on the sales of assets outside of the ordinary
course of business and gains from discontinued operations, (c) any gains
on the retirement of debt identified in the Consolidated statements of cash
flows and (d) any other nonrecurring or non-cash income, all as determined
on a Consolidated basis; provided that, in calculating Consolidated
EBITDA, the effect of the Cross Guarantees shall be disregarded.  If during such period the Guarantor or any
Subsidiary shall have made an acquisition, Consolidated EBITDA for such period
shall be calculated after giving pro forma
effect thereto as if such acquisition occurred on the first day of such period.


 


“Consolidated Interest Expense” means,
for any fiscal period (without duplication), (a) the Consolidated interest
expense of the Guarantor and its Consolidated Subsidiaries for such period plus
(b) if a Permitted Securitization Transaction outstanding during such
period is accounted for as a sale of accounts receivable, chattel paper,
general intangibles or the like under GAAP, the additional consolidated
interest expense that would have accrued during such period had such Permitted
Securitization Transaction been accounted for as a borrowing during such
period, determined on a Consolidated basis.


 


“Consolidated Net Income” means, for
any fiscal period, the Consolidated net income of the Guarantor for such
period.


 


“Consolidated Tangible Assets” means,
at any time, the total assets less all Intangible Assets appearing on the
Consolidated balance sheet of the Guarantor as of the end of the most recently
concluded fiscal quarter of the Guarantor.


 


“Consolidated Total Debt” means, as of
any date of determination, the aggregate amount of Debt of the Guarantor
determined on a Consolidated basis, as of such date; provided that
Guarantees shall be valued at the amount thereof, if any, reflected on the
Consolidated balance sheet of the Guarantor;  provided that if a Permitted Securitization Transaction is outstanding
at such date and is accounted for as a sale of accounts receivable, chattel
paper, general intangibles, or the like, under GAAP, Consolidated Total Debt
determined as aforesaid shall be adjusted to include the additional Debt,
determined on a consolidated basis as of such date, which would have been
outstanding at such date had such Permitted Securitization Transaction been
accounted for as a borrowing at such date; provided, further,
that Consolidated Total Debt shall not include Debt of a joint venture,
partnership or similar entity which is Guaranteed by the Guarantor or a
Consolidated Subsidiary by virtue of the joint venture, partnership or similar
arrangement with respect to such entity or by operation of applicable law (and
not otherwise) except to the extent that the aggregate outstanding principal
amount of such excluded Debt at such date exceeds $50,000,000; and provided,
further, that Consolidated Total Debt shall not include Cross
Guarantees.


 


“Cross Guarantees” means the
Guarantees by the Guarantor or its Subsidiaries of obligations of Tyco
Electronics Ltd. or Covidien International Finance S.A. or their respective
subsidiaries that are listed on Schedule 5.09, to the extent that the direct
obligor with respect to 


 


4

















 


the
obligations covered by such Guarantee guarantees or is otherwise obligated to
the payments of such guaranteed obligation for the benefit of the Guarantor or
such Subsidiary.


 


“Debt” of any Person means, at any
date, without duplication, (a) the principal of all obligations of such
Person for borrowed money; (b) the principal of all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments; (c) all
obligations of such Person in respect of the deferred purchase price of
property or services recorded on the books of such Person (except for (i) trade
and similar accounts payable and accrued expenses, (ii) employee
compensation, deferred compensation and pension obligations, and other
obligations arising from employee benefit programs and agreements or other
similar employment arrangements, (iii) obligations in respect of customer
advances received and (iv) obligations in connection with earnout and
holdback agreements, in each case in the ordinary course of business); (d) any
obligation of such Person to reimburse the issuer of any letter of credit,
performance bond, performance guaranty or bank guaranty issued for the account
of such Person upon which, and only to the extent that, a drawing has been made
(or such reimbursement obligation is otherwise not contingent) and such
non-contingent obligation is not reimbursed within five Business Days; (e) the
net capitalized amount of all obligations of such person as lessee which are
capitalized on the books of such Person in accordance with GAAP; (f) all
Debt of others secured by any Lien on property of such Person, whether or not
the Debt secured thereby has been assumed, but only to the extent of the lesser
of the face amount of the obligation or the fair market value of the assets so
subject to the Lien; and (g) all Guarantees by such Person of Debt of
others (except the Guarantor or any Subsidiary); provided that the term “Debt”
shall not include:


 


(A)          Intercompany
Debt (except that, for the purposes of Sections 5.10 and 5.11, Debt shall
include Intercompany Debt); or


 


(B)           obligations
in respect of trade letters of credit or bank guaranties supporting trade and
similar accounts payable arising in the ordinary course of business, or


 


(C)           Nonrecourse
Debt.


 


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


 


“Designated Officer” means the chief
executive officer, president, chief financial officer or treasurer of Tyco
International Management Company.


 


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


 


“Effective Date” means the date on
which the conditions specified in Section 4.01 are satisfied or waived.


 


“Environmental Laws” means all laws,
rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered 


 


5

















 


into by any
Governmental Authority, relating in any way to the environment, health, safety
or Hazardous Materials.


 


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


 


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


 


“ERISA Affiliate” means any Person,
trade or business (whether or not incorporated) that, together with the
Borrower, is treated as a single employer under Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b)(3) of ERISA.


 


“ERISA Event” means (a) any “reportable
event”, as defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan; (b) the existence with respect to any
Plan of an “accumulated funding deficiency” (as defined in Section 412
of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Guarantor or any of its
ERISA Affiliates of any liability under Title IV of ERISA (other than payment
of PBGC premiums) with respect to the termination of any Plan; (e) the
receipt by the Guarantor or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to the PBGC’s intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; (g) the receipt by the Guarantor or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Guarantor or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA; or
(h) the failure to timely make any required contribution or premium
payment in respect of any Plan or contribution in respect of any Multiemployer
Plan.


 


“Eurodollar”, when used in reference
to any Loan or Borrowing, means that such Loan, or the Loans comprising such
Borrowing, bear interest at a rate per annum equal to the applicable LIBO Rate
plus the Applicable Margin.


 


“Eurodollar Reserve Percentage” in respect of
any Lender and for any day during any Interest Period, the reserve percentage
(expressed as a decimal) in effect on such day and applicable to such Lender
under Regulation D promulgated by the Board for determining such Lender’s
reserve requirement (including any emergency, supplemental or other marginal
reserve


 


6
















 


requirement) with respect to
“Eurocurrency liabilities”, as in effect from time to time (“FRB Regulation
D”).


 


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


 


“Excluded Taxes” means, with respect
to the Administrative Agent, any Lender or any other recipient of any payment
to be made by or on account of any obligation of any Obligor hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Borrower is located and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 10.04(e)), any United States withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Foreign Lender’s failure to comply with Section 9.05(e) (except
to the extent such failure is attributable to a Change in Law), 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 either Obligor with respect to such withholding tax
pursuant to Section 9.05(a).


 


“Facility Fee” has the meaning
assigned to such term in Section 2.10(a)(ii).


 


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


 


“Fee Letters” means each of (i) the
letter dated May 28, 2008, between the Borrower and the Administrative
Agent and (ii) the letter dated May 28, 2008, between the Borrower
and the Lead Arrangers.


 


“Fitch” means Fitch Investor’s Service, Inc.


 


“Fitch Rating” means, at any time, the
rating published by Fitch of the Borrower’s Index Debt.


 


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


 


“GAAP” means generally accepted
accounting principles as in effect from time to time in the United States of
America.


 


7

















 


“Governmental Authority” means the
government of the United States of America or any political subdivision
thereof, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).


 


“Granting
Lender” has the meaning assigned to such term in Section 10.04(g).


 


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


 


“Guarantor” has the meaning set forth
in the preamble hereto.


 


“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.


 


“Increase Date” has the meaning
assigned to that term in Section 2.14(a).


 


“Increasing Lender” has the meaning
assigned to that term in Section 2.14(b).


 


“Indemnified Taxes” means Taxes other
than Excluded Taxes.


 


“Index Debt” means senior, unsecured,
long-term indebtedness for borrowed money of the Borrower that is not
guaranteed by any other Person other than the Guarantor or subject to any other
credit enhancement.


 


“Index Debt Rating” means the S&P
Rating, the Moody’s Rating and the Fitch Rating.


 


“Index Debt Rating Change” means a
change in the S&P Rating, the Moody’s Rating or the Fitch Rating that
results in a change from one Index Debt Rating category to another on the
Pricing Grid in accordance with the provisions of Schedule 1.01, each
Index Debt Rating Change 


 


8

















 


to be deemed to
take effect on the date on which the relevant change in rating is first
publicly announced by S&P, Moody’s or Fitch, as the case may be.


 


“Intangible Assets” means, at any
date, the amount (if any) stated under the heading “Goodwill and Other
Intangible assets, net” or under any other heading relating to intangible
assets separately listed, in each case, on the face of a balance sheet of the
Guarantor prepared on a Consolidated basis as of such date.


 


“Intercompany Debt” means (i) indebtedness
of the Guarantor owed to a Subsidiary and (ii) indebtedness of a
Subsidiary owed to the Guarantor or another Subsidiary.


 


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


 


“Interest Payment Date” means (a) with
respect to any ABR Loan, the last Business Day of each March, June, September and
December and (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part; provided
that, if an Interest Period for a Eurodollar Borrowing is of more than three
months’ duration, each day within such Interest Period that occurs at intervals
of three months’ duration after the first day of such Interest Period shall
also be an Interest Payment Date.


 


“Interest Period” means with respect
to any Eurodollar Borrowing, the period commencing on the date of such
Borrowing and ending on the date that is one, two, three or six months
thereafter, as the Borrower may elect, upon notice received by the
Administrative Agent not later than 11:00 a.m. (New York City time) on the
third Business Day prior to the first day of such Interest Period, or such
other period as requested by the Borrower and agreed to by all the Lenders in
accordance with Section 2.03(b); provided, that


 


(i)          if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day;


 


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


 


(iii)        the
Borrower may not select any Interest Period that may end after the Maturity
Date.


 


For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.


 


9

















 


“Lead Arrangers” means Citigroup
Global Markets Inc. and Bank of America Securities LLC.


 


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


 


“LIBO Rate” means, with respect to any
Eurodollar Borrowing for any Interest Period, the British Bankers Association
London Interbank Offered Rate (“BBA LIBOR”), as it is published by
Reuters or any successor to or substitute for such service, providing rate
quotations of BBA LIBOR, as determined by the Administrative Agent from time to
time for purposes of providing quotations of interest rates applicable to
dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period.  In the event that such
rate is not available at such time for any reason, then the “LIBO Rate”
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $10,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period.


 


“Lien” means, with respect to any
asset, any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or of such asset, including the interest of
a vendor or a lessor under any conditional sale agreement, capital lease or
title retention agreement.


 


“Loan Documents” means this Agreement,
each Note (if any), the Fee Letters and each Subsidiary Guaranty (if any).


 


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


 


“Material Adverse Effect” means a
material adverse effect on (a) the Consolidated financial condition,
business or operations of the Guarantor and its Subsidiaries taken as a whole, (b) the
ability of the Obligors to perform their obligations under the Loan Documents
or (c) the rights and remedies of the Administrative Agent and the Lenders
under the Loan Documents.


 


“Material Debt” means Debt (other than
Loans or other Debt under this Agreement) of any one or more of the Guarantor
and its Subsidiaries in an aggregate principal amount exceeding $100,000,000.


 


“Maturity Date” means June 24,
2011.


 


“Moody’s” means Moody’s Investors
Service, Inc. and any successor to its business of rating debt securities.


 


10

















 


“Moody’s Rating” means, at any time,
the rating published by Moody’s of the Borrower’s Index Debt.


 


“Multiemployer Plan” means a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 


“Nonrecourse Debt” means, at any time,
all Debt of Subsidiaries (and all other Persons which are consolidated on the
Guarantor’s financial statements in accordance with GAAP (such Subsidiaries or
other Persons a “Consolidated Person”)) of the Guarantor outstanding at
such time incurred on terms that recourse may be had to such Consolidated
Person only by enforcing the lender’s default remedies with respect to specific
assets which constitute collateral security for such Debt and not by way of
action against such Consolidated Person (nor against the Guarantor or such
other Consolidated Person of the Guarantor) as a general obligor in respect of
such Debt (subject to, for the avoidance of doubt, customary exceptions
contained in non-recourse financings to the non-recourse nature of the
obligations thereunder).


 


“Note” means a promissory note
substantially in the form of Exhibit A made by the Borrower in
favor of a Lender evidencing Loans made by such Lender, to the extent requested
by such Lender pursuant to Section 2.08(e).


 


“Obligors” means the Borrower and the
Guarantor.


 


“Other Taxes” means any and all present
or future, stamp or documentary taxes or any other excise or property taxes,
charges or similar levies (together with any addition to tax, penalty, fine or
interest thereon) arising from any payment made under any Loan Document or from
the execution, delivery or enforcement of, or otherwise with respect to, any
Loan Document.


 


“Participant” has the meaning assigned
to such term in Section 10.04.


 


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


 


“Permitted Acquired Debt” means Debt
of a Person that exists at the time such Person becomes a Subsidiary or at the
time the Guarantor or a Subsidiary acquires all or substantially all of the
assets of such Person if such Debt is assumed by the Guarantor or such
Subsidiary and was not created in contemplation of any such event (“Acquired
Debt”) and any Refinancing thereof; provided if such Acquired Debt
is Refinanced, it shall constitute Permitted Acquired Debt only if the Borrower
is the obligor thereunder.


 


“Permitted
Securitization Transaction”  means any sale
or sales of any accounts receivable, general intangibles, chattel paper or
other financial assets and related rights and assets of the Guarantor and/or
any of its Subsidiaries, and financing secured by the assets so sold, pursuant
to which the Guarantor and its Subsidiaries realize aggregate net proceeds of
not more than $1,000,000,000, including, without limitation, any revolving
purchase(s) of such assets 


 


11

















 


where the
maximum aggregate uncollected purchase price (exclusive of any deferred
purchase price) therefor does not exceed $1,000,000,000.


 


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


 


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


 


“Platform” has the meaning assigned to
such term in Section 10.15.


 


“Preferred Stock” means any preferred
and/or redeemable capital stock of the Guarantor or any Subsidiary, as the case
may be, that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder, in whole or in part, on or prior to the Maturity
Date.


 


“Pricing Grid” means the Pricing Grid
and the conventions for determining pricing as set forth on Schedule 1.01.


 


“Refinancing” means, with respect to
any financing, any instrument or agreement amending, restating, supplementing,
extending, renewing, refunding, refinancing, replacing or otherwise modifying,
in whole or in part, the documents governing such financing (and “Refinance”
shall have a correlative meaning).


 


“Register” has the meaning assigned to
such term in Section 10.04.


 


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


 


“Reportable Action” means any action,
suit or proceeding or investigation before any court, arbitrator or other
governmental body against the Guarantor or any of its Subsidiaries or any ERISA
Event, in each case in which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have a Material Adverse
Effect.


 


“Required Lenders” means, at any time,
Lenders (not including the Borrower or any of its Affiliates) having aggregate
Applicable Percentages in excess of 50% at such time.


 


“Responsible Officer” means any of the
following:  (i) the Chief Executive
Officer, President, Vice President and Chief Financial Officer, Treasurer or
Secretary of the Guarantor or (ii) the Chief Executive Officer, President,
Vice President and Chief Financial Officer, Treasurer or Secretary of the
Borrower or a Managing Director of the Borrower.


 


12

















 


“Revolving Credit Exposure” means,
with respect to any Lender at any time, the outstanding principal amount of
such Lender’s Loans at such time.


 


“S&P” means Standard &
Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and
any successor to its business of rating debt securities.


 


“S&P Rating” means, at any time,
the rating published by S&P of the Borrower’s Index Debt.


 


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


 


“Significant Subsidiary” means, at any
date, any Subsidiary which, including its subsidiaries, meets any of the
following conditions:


 


(i)          the proportionate share attributable to such
Subsidiary of the total assets of the Guarantor (after intercompany
eliminations) exceeds 15% of the total assets of the Guarantor, determined on a
Consolidated basis as of the end of the most recently completed fiscal year; or


 


(ii)         the
Guarantor’s and its Subsidiaries’ equity in the income of such Subsidiary from
continuing operations before income taxes, extraordinary items and cumulative
effect of a change in accounting principles exceeds 15% of Consolidated income
of the Guarantor from continuing operations before income taxes, any loss on
the retirement of debt, extraordinary items, cumulative effect of a change in
accounting principles, and before any impairment charges, determined for the most
recently completed fiscal year.


 


For the avoidance of doubt, the
Borrower shall at all times be deemed a “Significant Subsidiary”.


 


“SPC”
has the meaning assigned to such term in Section 10.04(g).


 


“Stock” means, with respect to any
Person, any capital stock or equity securities of or other ownership interests
in such Person.


 


“Stock Equivalents” means, with
respect to any Person, options, warrants, calls or other rights entered into or
issued by such Person to acquire any Stock of, or securities convertible into
or exchangeable for Stock of, such Person.


 


“subsidiary” of a Person means a
corporation, partnership, joint venture, limited liability company or other
entity of which a majority of the shares of securities or other interests
having ordinary voting power for the election of directors or other governing
body (other than securities or interests having such power only by reason of
the happening of a contingency) are at the time beneficially owned, or the
management of which is otherwise controlled, directly, or indirectly through
one or more intermediaries, or both, by such Person.


 


“Subsidiary” means any subsidiary of
the Guarantor.


 


13

















 


“Subsidiary Guarantor” means each
Subsidiary that has executed a Subsidiary Guaranty pursuant to Section 5.12.


 


“Subsidiary Guaranty” means a guaranty
entered into by a Subsidiary in substantially the form of Exhibit D,
with any such modifications to such form as may be necessary or advisable and
customary under the local law of the jurisdiction of organization of the
relevant Subsidiary, in the judgment of the Obligors.


 


“Taxes” means any and all present or
future taxes, levies, imposts, duties, deductions, charges or withholdings
imposed or asserted by any Governmental Authority, together with any addition
to tax, penalty, fine or interest thereon.


 


“TIGSA” means Tyco International Group
S.A., a Luxembourg company.


 


“Transactions” means the execution,
delivery and performance by the Obligors of this Agreement and the other Loan
Documents, the borrowing of Loans and the use of the proceeds thereof.


 


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


 


“Upfront Fee” has the meaning assigned
to such term in Section 2.10(a)(i).


 


“Wholly-Owned Consolidated Subsidiary”
means any Consolidated Subsidiary all of the shares of capital stock or other
ownership interests of which (except directors’ qualifying shares and
investments by foreign nationals mandated by applicable law) are at the time
beneficially owned, directly or indirectly, by the Guarantor.


 


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


 


Section 1.02         Classification of Loans and Borrowings.  For purposes of this Agreement and the other
Loan Documents, Loans or Borrowings may be classified and referred to by Type
(e.g., a “Eurodollar Loan” or an “ABR Borrowing”).


 


Section 1.03         Terms Generally.  With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:


 


The definitions of terms herein and therein
shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation”.  The word “will”
shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document 


 


14

















 


as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the
words “herein”, “hereof” and “hereunder”, and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (d) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear and (e) the words “asset”
and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.


 


Section 1.04         Accounting Terms; GAAP.  Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if
the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision, regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, then (i) the
Administrative Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such provision to preserve the original intent thereof in light
of such change in GAAP (subject to the approval of the Required Lenders) and (ii) such
provision shall be interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.


 


ARTICLE
II


 


The Credits


 


Section 2.01         Commitments.  Subject to the terms and conditions set forth
herein, each Lender agrees to make Loans to the Borrower from time to time
during the Availability Period in an aggregate principal amount that will not
result in (i) such Lender’s Revolving Credit Exposure exceeding such
Lender’s then applicable Commitment or (ii) the total Revolving Credit
Exposures exceeding the then applicable total Commitments.  Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Loans.


 


Section 2.02         Loans and Borrowings.


 


(a)           Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their then applicable respective Commitments. 
The failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder and no other
Lender shall be responsible for such failure by any Lender.


 


(b)           Subject to Section 9.03, each Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower
may request in accordance herewith.  Each



 


15

















 


Lender at its option may make any Eurodollar
Loan by causing any U.S. or non-U.S. branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect
the obligation of the Borrower to repay such Loan in accordance with the terms
of this Agreement or result in any obligations of the Borrower to pay
additional amounts under Section 9.03 or 9.05.


 


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


 


Section 2.03         Requests for Borrowings.


 


(a)                                  To
request a Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone, facsimile or electronic mail (i) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing (except as provided in Section 2.03(b))
or (ii) in the case of an ABR Borrowing, not later than 11:00 a.m.,
New York City time, on the date of the proposed Borrowing.  Each Borrowing Request shall be irrevocable
and if made telephonically, shall be confirmed promptly, by hand delivery,
facsimile or electronic mail of a written Borrowing Request in a form approved
by the Administrative Agent, and be executed by a Managing Director of the
Borrower or another authorized borrowing representative of the Borrower, as
notified by the Borrower to the Administrative Agent from time to time.  Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:


 


(i)                                     the
aggregate amount of the requested Borrowing;


 


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


 


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


 


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


 


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


 


If no election as to the Type of Borrowing is
specified, then the requested Borrowing shall be an ABR Borrowing.  If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one


 


16
















 


month’s duration.  Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender’s Loan to be made as part of the requested Borrowing.


 


(b)           The Borrower
may request a Eurodollar Borrowing having an Interest Period other than one,
two, three or six months in duration as provided in the definition of “Interest
Period” by notifying the Administrative Agent not later than 11:00 a.m.,
New York City time, four Business Days prior to the requested date of such
Borrowing having such Interest Period, whereupon the Administrative Agent shall
give prompt notice to the Lenders of such request and determine whether the
requested Interest Period is acceptable to all of them; and not later than 8:00 a.m.,
New York City time, on the Business Day after receiving such request from the
Borrower, the Administrative Agent shall notify the Borrower whether or not the
requested Interest Period has been agreed to by all the Lenders.  If such requested Interest Period is so
approved by all of the Lenders, the Borrower may thereafter from time to time
elect to make Borrowing Requests under Section 2.03(a) and Interest
Election Requests under Section 2.06(c) designating such Interest
Period, until the Administrative Agent notifies the Borrower that the Required
Lenders have elected to revoke such approval.


 


Section 2.04         [Intentionally
Omitted].


 


Section 2.05         Funding
of Borrowings.


 


(a)           Each Lender
shall make each Loan to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds by 1:00 p.m., New York City
time, to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders. 
Upon satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Borrowing, Section 4.01), the
Administrative Agent will make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City or (ii) wire
transfer of such funds, in each case in accordance with instructions provided
to the Administrative Agent in the applicable Borrowing Request.


 


(b)           Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, or by 12:00 p.m.
New York City time on the proposed date of such Borrowing, in the case of ABR
Borrowings, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount.  If and
to the extent that such Lender did not make available such Lender’s share of
such Borrowing, then such Lender shall forthwith on demand pay to the
Administrative Agent the amount thereof in immediately available funds,
together with interest thereon for the period from the date such amount was
made available by the Administrative Agent to the Borrower to the date such
amount is recovered by the Administrative Agent (the “Compensation Period”)
at a rate per annum equal to the Federal Funds Effective Rate from time to time
in effect plus the Administrative Agent’s standard 


 


17





















 


processing fee for interbank compensation.  If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in the applicable Borrowing.  If
such Lender does not pay such amount forthwith upon the Administrative Agent’s
demand therefor, the Administrative Agent may make a demand therefor upon the
Borrower, and the Borrower shall pay such amount to the Administrative Agent,
together with the interest thereon for the Compensation Period at a rate per
annum equal to the rate of interest applicable to the applicable
Borrowing.  Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its Commitment or
to prejudice any rights which the Administrative Agent or the Borrower may have
against any Lender as a result of any default by such Lender hereunder.


 


Section 2.06         Interest
Elections.


 


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


 


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


 


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


 


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


 


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


 


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


 


18





















 


(iv)       if the resulting Borrowing is a
Eurodollar Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the definition
of the term “Interest Period”, subject to Section 2.03(b).


 


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


 


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


 


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


 


Section 2.07         Termination
and Reduction of Commitments.


 


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


 


(b)           The Borrower
may at any time terminate, or from time to time reduce, the Commitments; provided
that (i) each reduction of the Commitments shall be in an amount that is
an integral multiple of $1,000,000 and not less than $10,000,000 and (ii) the
Borrower shall not terminate or reduce the Commitments if, after giving effect
to any concurrent prepayment of the Loans in accordance with Section 2.09,
the total Revolving Credit Exposures would exceed the total Commitments.


 


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


 


19





















 


Section 2.08         Repayment
of Loans; Evidence of Debt.


 


(a)           The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Loan on the
Maturity Date.


 


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


 


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


 


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


 


(e)           Any Lender may
request that Loans made by it be evidenced by a Note.  In such event, the Borrower shall prepare,
execute and deliver to such Lender a Note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered
assigns).  Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more Notes
payable to the order of the payee named therein (or, if such Note is a
registered note, to such payee and its registered assigns).


 


Section 2.09         Prepayment
of Loans.


 


(a)           The Borrower
shall have the right at any time and from time to time to prepay any Borrowing
in whole or in part subject to prior notice in accordance with paragraph (b) of
this Section.


 


(b)           The Borrower
shall notify the Administrative Agent by telephone (confirmed in a signed
notice sent by facsimile or electronic mail) of any prepayment hereunder (i) in
the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment, or (ii) in
the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New
York City time, on the date of prepayment. 
Each such notice shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid provided that,
if a notice of optional prepayment is given in connection with a conditional
notice of termination of the Commitments as 


 


20





















 


contemplated by Section 2.07(c), then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with Section 2.07(c).  Promptly following receipt of any such notice
relating to a Borrowing, the Administrative Agent shall advise the Lenders of
the contents thereof.  Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in
the case of an advance of a Borrowing of the same Type as provided in Section 2.02(c).  Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.11 and break funding payments
to the extent required by Section 9.04.


 


Section 2.10         Fees.


 


(a)           The Borrower
agrees to pay to the Administrative Agent for the account of each Lender the
following fees:


 


(i)          on the Closing Date, an upfront fee in
an amount agreed to in the letter dated May 28, 2008, between the Borrower
and the Lead Arrangers (the “Upfront Fee”).


 


(ii)         a commitment fee, which shall accrue on
the daily undrawn amount of the then applicable Commitment of such Lender
during the period from and including the Effective Date to but excluding the
date on which such Commitment terminates, at the rate per annum set forth on
the Pricing Grid opposite the reference to the applicable Index Debt Rating
under the heading “Applicable Commitment Fee Rate” (the “Commitment Fee”).  Commitment Fees accrued through and including
the last Business Day of March, June, September and December of each
year shall be payable on each such last Business Day, commencing on the first
such date to occur after the date hereof; provided that all such fees
shall be payable on the date on which the Commitments terminate.


 


(b)           The Borrower
agrees to pay to the Administrative Agent and the Lead Arrangers, for their own
accounts, the fees payable in the amounts and at the times agreed in the Fee
Letters.  Such fees shall be fully earned
when paid and shall not be refundable for any reason whatsoever.


 


(c)           All fees
payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, in the case of Upfront
Fees and Facility Fees, to the Lenders. 
Fees paid shall not be refundable under any circumstances.


 


Section 2.11         Interest.


 


(a)           The Loans
comprising each ABR Borrowing shall bear interest at the Alternate Base Rate.


 


(b)           The Loans
comprising each Eurodollar Borrowing shall bear interest at the LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable Margin.


 


21





















 


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


 


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


 


Section 2.12         Calculation
of Interest and Fees.


 


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


 


(b)           All fees hereunder shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).


 


Section 2.13         Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.


 


(a)           The Borrower
shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or of amounts payable under Section 9.03, 9.04
or 9.05, or otherwise) prior to 2:00 p.m., New York City time, on the date
when due, in immediately available funds, without set off or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon; provided that no amount shall be deemed to have been
received on the next succeeding Business Day if the Borrower provides the
Administrative Agent with written confirmation of a Federal Reserve Bank
reference number no later than 4:00 p.m. on the date when due.  All such payments shall be made to the
Administrative Agent at the Administrative Agent’s Office, except that payments
pursuant to Sections 9.03, 9.04, 9.05 and 10.03 shall be made directly to the
Persons entitled thereto.  The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following 


 


22





















 


receipt thereof.  If any payment
hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension.  All payments
under this Agreement and the other Loan Documents shall be made in dollars in
New York, New York.


 


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


 


(c)           If any Lender
shall, by exercising any right of set off or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Loans or other
obligations hereunder resulting in such Lender receiving payment of a
proportion of the aggregate amount of its Loans and accrued interest thereon or
such other obligations 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 Loans and such other obligations of the other
Lenders, or make such other adjustments that 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 (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this paragraph shall
apply).  The Borrower and the Guarantor
each consent to the foregoing and each agree, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the Borrower and the
Guarantor rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower or the
Guarantor in the amount of such participation.


 


(d)           Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. 
In such event, if the Borrower has not in fact made such payment, then
each of the Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender 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 


 


23





















 


the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


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


 


Section 2.14         Commitment
Increase.


 


(a)           The Borrower
may, at any time, but in any event not more than once per calendar quarter,
prior to the Maturity Date, by notice to the Administrative Agent in the form
attached hereto as Exhibit E (each a “Commitment Increase Notice”),
request that the aggregate amount of the Commitments be increased by an amount
of at least $10,000,000 or an integral multiple of $5,000,000 in excess thereof
(each a “Commitment Increase”) to be effective as of a date that is at
least 90 days prior to the scheduled Maturity Date then in effect (each an “Increase
Date”) as specified in the related notice to the Administrative Agent; provided,
however that (i) in no event shall the aggregate amount of the
Commitments at any time exceed $750,000,000 and (ii) on the date of any
request by the Borrower for a Commitment Increase and on the related Increase
Date the conditions set forth in Section 4.03 shall have been
satisfied.  The Borrower may extend
offers to one or more Lenders and/or to one or more third party financial
institutions reasonably acceptable to the Administrative Agent to participate
in a requested Commitment Increase under this Section 2.14(a); provided,
however, that the Commitment of each such third party financial
institution shall be in an amount of $10,000,000 or an integral multiple of
$5,000,000 in excess thereof.  Any Lender
that has received such an offer may accept or decline such offer in such Lender’s
sole and absolute discretion.


 


(b)           On each
Increase Date, each third party financial institution that accepts an offer to
participate in a requested Commitment Increase in accordance with Section 2.14(a) (each
such financial institution, an “Assuming Lender”) shall become a Lender
party to this Agreement as of such Increase Date with a Commitment in the
amount of its participation in such Commitment Increase and the Commitment of
each Lender that accepts an offer to participate in a requested Commitment
Increase (each an “Increasing Lender”) shall be increased by the amount
of its participation in such Commitment Increase; provided, however,
that the Administrative Agent shall have received on or before such Increase
Date the following, each dated such date:


 


(i)          certified copies of resolutions of the
Board of Directors of the Borrower approving the Commitment Increase and the
corresponding modifications to this Agreement and an opinion of counsel for the
Borrower (which may be in-house counsel), in each case, reasonably satisfactory
to the Administrative Agent;


 


(ii)         an assumption agreement from each
Assuming Lender, if any, in form and substance reasonably satisfactory to the
Borrower and the Administrative Agent (each 


 


24





















 


an “Assumption Agreement”),
duly executed by such Assuming Lender, the Administrative Agent and the
Borrower; and


 


(iii)        confirmation from each Increasing Lender
of the increase in the amount of its Commitment in a writing reasonably
satisfactory to the Borrower and the Administrative Agent.


 


On
each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.14(b) and in Section 4.03,
the Administrative Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M.
(New York City time), by telecopier, of the occurrence of the Commitment
Increase to be effected on such Increase Date and shall record in the Register
the relevant information with respect to each Increasing Lender and each
Assuming Lender on such date.


 


(c)           On the Increase
Date, if any Loans are then outstanding, the Borrower shall borrow from all or
certain of the Lenders and/or (subject to compliance by the Borrower with Section 9.04)
prepay Loans of all or certain of the Lenders such that, after giving effect
thereto, the Loans (including, without limitation, the Types and Interest
Periods thereof) shall be held by the Lenders (including for such purposes the
Increasing Lenders and the Assuming Lenders) ratably in accordance with their
respective Applicable Percentage after giving effect to such Commitment
Increase.  On and after each Increase
Date, the Applicable Percentage of each Lender’s participation in Loans shall
be calculated after giving effect to each such Commitment Increase.


 


ARTICLE III 


 


Representations and
Warranties


 


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


 


Section 3.01         Organization; Powers.  Each Obligor is a company duly organized or
formed and validly existing under the laws of its jurisdiction of organization
or formation.  Each Obligor has all
corporate powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, except to the
extent that failure to have any such power or governmental license,
authorization, consent or approval could not, based upon the facts and
circumstances in existence at the time this representation and warranty is made
or deemed made, reasonably be expected to have a Material Adverse Effect.


 


Section 3.02         Authorization; Enforceability.  The Transactions are within such Obligor’s
corporate powers and have been duly authorized by all necessary corporate and,
if required, stockholder action.  This
Agreement and each other Loan Document to which such Obligor is a party has
been duly executed and delivered by such Obligor and constitutes a legal, valid
and binding obligation of such Obligor, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ 


 


25





















 


rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.


 


Section 3.03         Governmental Approvals; No Conflicts.  The Transactions (a) do not require any
consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are
in full force and effect, (b) will not violate, contravene, or constitute
a default under any provision of (i) any applicable law or regulation, (ii) the
charter, by-laws or other organizational documents of such Obligor, (iii) any
order, judgment, decree or injunction of any Governmental Authority, (iv) any
agreement or instrument evidencing or governing Debt of such Obligor, except
for any contravention or default under any such agreement or instrument
evidencing or governing such Debt in an aggregate principal amount,
individually or in the aggregate for all such agreements or instruments in
respect of which there is a contravention or default, not in excess of
$25,000,000 or (v) any other material agreement or instrument binding upon
such Obligor or its assets.


 


Section 3.04         Financial
Condition; No Material Adverse Change.


 


(a)           The Guarantor
has heretofore furnished to the Administrative Agent (i) its Consolidated
balance sheet and statements of income, shareholders equity and cash flows as
of and for the fiscal year ended September 28, 2007, reported on by
Deloitte & Touche LLP, independent public accountants and its (ii) Consolidated
balance sheet and statements of income for the quarters ended December 28,
2007 and March 28, 2008 certified by its chief financial officer.  Such financial statements, present fairly, in
all material respects, the Consolidated financial position and results of
operations and cash flows of the Guarantor as of such date and for such period
in accordance with GAAP, subject to year end audit adjustments and the absence
of footnotes in the case of the statements referred to in subclause (ii) above.


 


(b)           Since September 28,
2007 there has been no material adverse change in the consolidated financial
condition, business or operations of the Guarantor and its Subsidiaries, taken
as a whole.


 


Section 3.05         Litigation
and Environmental Matters.


 


(a)           There are no
actions, suits, investigations or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Obligors,
threatened against or affecting the Guarantor or any of its Subsidiaries (i) as
to which there is a reasonable possibility of an adverse determination which
could, based upon the facts and circumstances in existence at the time this
representation and warranty is made or deemed made, reasonably be expected to
result in a Material Adverse Effect, other than the matters described in the
Guarantor’s filings of Forms 10K, 10Q or 8K, in each case on or before the date
hereof (the “Existing Litigation”), and other than shareholders’
derivative litigation or shareholders’ class actions based on the same facts
and circumstances as the Existing Litigation, or (ii) that could
reasonably be expected to adversely affect the validity or enforceability of
any of the Loan Documents or the Transactions.


 


26
















 


(b)           Except with
respect to any matters that could not, based upon the facts and circumstances
in existence at the time this representation and warranty is made or deemed
made, reasonably be expected to result in a Material Adverse Effect and except
for the matters described in the Guarantor’s filings of Forms 10K, 10Q or 8K,
in each case on or before the date hereof, neither the Guarantor nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law or (ii) has become subject to any
Environmental Liability.


 


Section 3.06         Investment Company Status.  Neither Obligor is an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940.


 


Section 3.07         Taxes.  Each of the
Guarantor and its Significant Subsidiaries has timely filed or caused to be
filed all Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) Taxes
that are being contested in good faith by appropriate proceedings and for which
the Guarantor or such Significant Subsidiary, as applicable, has set aside on
its books adequate reserves or (b) to the extent that the failure to do so
could not, based upon the facts and circumstances in existence at the time this
representation and warranty is made or deemed made, reasonably be expected to
result in a Material Adverse Effect.


 


Section 3.08         ERISA.  No ERISA
Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to
occur, could, based upon the facts and circumstances in existence at the time
this representation and warranty is made or deemed made, reasonably be expected
to result in a Material Adverse Effect. 
The present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Plans by an amount which could
based upon the facts and circumstances existing at the time this representation
and warranty is made or deemed made, reasonably be expected to result in a
Material Adverse Effect.


 


Section 3.09         Disclosure.  All
information heretofore furnished by or on behalf of the Obligors to the
Administrative Agent or the Lenders in connection with this Agreement or the
other Loan Documents, when taken as a whole, does not contain any untrue
statement of material fact or omit to state any material fact necessary to make
the statements contained herein or therein, in light of the circumstances under
which they were made, not misleading; provided that with respect to
projections and other forward-looking information, the Obligors represent and
warrant only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time made, it being understood
that projections and forward-looking information are subject to significant
uncertainties and contingencies, many of which are beyond the control of the
Obligors and that no assurance can be given that such projections will be
realized.


 


27





















 


Section 3.10         Subsidiaries.  Each of the
Guarantor’s Subsidiaries is duly organized or formed, validly existing and (to
the extent such concept is applicable to it) in good standing under the laws of
its jurisdiction of organization or formation, except where the failure to be
so organized, existing or in good standing could not, based upon the facts and
circumstances existing at the time this representation and warranty is made or
deemed made, reasonably be expected to have a Material Adverse Effect.  Each such Subsidiary has all legal powers and
all governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted, except to the extent that failure to
have any such power or governmental license, authorization, consent or approval
could not, based upon the facts and circumstances in existence at the time this
representation and warranty is made or deemed made, reasonably be expected to
have a Material Adverse Effect.


 


Section 3.11         Margin
Regulations.  Neither
Obligor is engaged principally or as one of its important activities in the
business of buying or carrying margin stock within the meaning of
Regulation U of the Board.


 


ARTICLE IV 


 


Conditions


 


Section 4.01         Effective Date.  The
obligations of the Lenders to make Loans hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or
waived in accordance with Section 10.02):


 


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


 


(b)           The
Administrative Agent (or its counsel) shall have received a Note executed by
the Borrower in favor of each Lender that requested a Note prior to the Closing
Date in accordance with Section 2.08(e).


 


(c)           The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the date of this
Agreement) of (i) the general counsel of the Guarantor in substantially
the form attached as Exhibit C-1, (ii) Allen & Overy,
special Luxembourg counsel of the Borrower in substantially the form attached
as Exhibit C-2, (iii) Appleby, special Bermuda counsel of the
Guarantor, in substantially the form attached as Exhibit C-3 and (iv) Gibson,
Dunn & Crutcher LLP, special New York counsel of the Obligors in
substantially the form attached as Exhibit C-4.


 


(d)           The Administrative
Agent shall have received on or before the date of this Agreement certified
copies of the charter, by-laws and other constitutive documents of each Obligor
and of resolutions of the Board of Directors of each Obligor authorizing the
Transactions, together with incumbency certificates dated the date of this
Agreement evidencing 


 


28





















 


the identity, authority and capacity of each Person authorized to
execute and deliver this Agreement, the other Loan Documents and any other
documents to be delivered by such Obligor pursuant hereto, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.


 


(e)           The
Administrative Agent shall have received a certificate, dated the date of this
Agreement and signed by a Responsible Officer, confirming that (i) the
representations and warranties of each Obligor set forth in Article III of
this Agreement are true and correct and (ii) no Default has occurred and
is continuing.


 


(f)            The Administrative
Agent shall have received evidence reasonably satisfactory to it of the consent
of CT Corporation System in New York, New York to the appointment and
designation provided by Section 10.09(d).


 


(g)           The
Administrative Agent shall have received payment of Upfront Fees for the
account of each Lender pursuant to Section 2.10(a)(i).


 


(h)           The Borrower
shall have paid all fees required to be paid by it pursuant to the Fee Letters
and, unless waived by the Administrative Agent and the Lead Arrangers, the
Borrower shall have paid all legal fees and expenses of the Administrative
Agent and the Lead Arrangers required to be paid pursuant to the terms of this
Agreement and to the extent invoiced and received by the Borrower prior to the
Closing Date.


 


The Administrative Agent shall (i) notify
the Borrower and the Lenders of the satisfaction of the conditions described in
clauses (a) through (h) above on the Closing Date and (ii) notify
the Borrower and the Lenders of the Effective Date.  Each such notice shall be conclusive and
binding.


 


Section 4.02         Each Borrowing.  The
obligation of each Lender to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:


 


(a)           The
representations and warranties of the Obligors set forth in Article III of
this Agreement (other than Section 3.04, Section 3.05(a)(i) or
(b), or Section 3.09) or any other Loan Document, or which are contained
in any certificate or notice delivered at any time by any Obligor under or in
connection herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Borrowing, before and after giving
effect to such Borrowing, or if any such representation or warranty was made as
of a specific date, such representation and warranty was true and correct in
all material respects on and as of such date.


 


(b)           At the time of
and immediately after giving effect to such Borrowing, no Default shall have
occurred and be continuing.


 


(c)           Borrower shall
have delivered a Borrowing Request in accordance with Section 2.03.


 


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Each Borrowing Request shall be deemed to
constitute a representation and warranty by the Obligors on the date of such
Borrowing Request and the date of the Borrowing requested thereunder as to the
matters specified in paragraphs (a) and (b) of this Section.


 


Section 4.03         Each
Commitment Increase.  Each
Commitment Increase requested by the Borrower pursuant to Section 2.14 is
subject to the satisfaction of the following conditions:


 


(a)           The
representations and warranties of the Obligors set forth in Article III of
this Agreement or any other Loan Document, or which are contained in any
certificate or notice delivered at any time by any Obligor under or in
connection herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Commitment Increase Notice and on the
Increase Date, before and after giving effect to such Commitment Increase, or
if any such representation or warranty was made as of a specific date, such
representation and warranty was true and correct in all material respects on
and as of such date.


 


(b)           At the time of
and immediately after giving effect to such Commitment Increase, no Default
shall have occurred and be continuing.


 


(c)           The Borrower
shall have delivered a Commitment Increase Notice in accordance with Section 2.14(a).


 


Each Commitment Increase Notice shall be
deemed to constitute a representation and warranty by the Obligors on the date
of such Commitment Increase Notice and on the Increase Date as to the matters
specified in paragraphs (a) and (b) of this Section.


 


ARTICLE
V 


 


Covenants


 


From and after the Effective Date, until the
Commitments have expired or been terminated and the principal of and interest
on each Loan and all fees payable under the Loan Documents shall have been paid
in full, the Guarantor (and the Borrower, where applicable) covenants and
agrees with the Lenders that:


 


Section 5.01         Financial Statements and Other Information.  The Guarantor will furnish to the
Administrative Agent (which, except as otherwise provided below with respect to
subsections (a), (b) or (e), the Administrative Agent shall promptly
furnish to each Lender):


 


(a)           within
120 days after the end of each fiscal year of the Guarantor, its audited
Consolidated balance sheet and related statements of operations, shareholders’
equity and cash flows as of the end of and for such fiscal year, setting forth
in each case in comparative form the figures for the previous fiscal year, all
reported on by Deloitte & Touche LLP or other independent public
accountants of internationally recognized standing in a manner complying with
the applicable rules and regulations promulgated by the SEC;


 


30





















 


(b)           within
60 days after the end of each of the first three fiscal quarters of each
fiscal year of the Guarantor, its Consolidated balance sheet and related
statements of operations and cash flows for such fiscal quarter and the related
statements of operations and cash flows for the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of the previous fiscal year, all certified as
to GAAP (subject to the absence of footnotes, audit and normal year-end
adjustments) on behalf of the Guarantor by the chief financial officer or the
chief accounting officer of the Guarantor or a Designated Officer;


 


(c)           concurrently
with any delivery of financial statements under clause (a) or (b) above,
a certificate on behalf of the Guarantor signed by the chief financial officer
or the chief accounting officer of the Guarantor or a Designated Officer (i) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect
thereto, and (ii) setting forth reasonably detailed calculations
demonstrating whether the Guarantor was in compliance with Section 5.09;


 


(d)           within five
Business Days after any Responsible Officer obtains knowledge of any Default,
if such Default is then continuing, a certificate on behalf of the Guarantor
signed by a Responsible Officer of the Guarantor or a Designated Officer
setting forth, in reasonable detail, the nature thereof and the action which
the Guarantor is taking or proposes to take with respect thereto;


 


(e)           promptly upon
the filing thereof, copies of all final registration statements (other than the
exhibits thereto and any registration statements on Form S-8 or its
equivalent), final reports on Forms 10-K, 10-Q and 8-K (or their equivalents)
and proxy statements which the Guarantor or the Borrower shall have filed with
the SEC;


 


(f)            promptly upon
any Responsible Officer obtaining knowledge of the commencement of any
Reportable Action, a certificate on behalf of the Guarantor specifying the
nature of such Reportable Action and what action the Guarantor is taking or
proposes to take with respect thereto; and


 


(g)           from time to
time, upon reasonable notice, such other information regarding the financial
position or business of the Guarantor and its Subsidiaries, or compliance with
the terms of this Agreement, as any Lender through the Administrative Agent may
reasonably request.


 


Information required to be delivered pursuant to subsections (a), (b) or
(e) above may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Guarantor posts
such documents, or provides a link thereto on the Guarantor’s website on the
Internet at www.tyco.com (or such
other website as the Guarantor may designate in a writing delivered to the
Administrative Agent), or at sec.gov/edaux/searches.htm; or (ii) on
which such documents are posted on the Guarantor’s behalf, or delivered to the
Administrative Agent by the Guarantor in accordance with Section 10.15.


 


Section 5.02         Existence;
Conduct of Business.  The
Guarantor will:


 


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(a)           not engage in
any material business other than the holding of stock and other investments in
its Subsidiaries and activities reasonably related thereto; and


 


(b)           preserve, renew
and keep in full force and effect, and will cause each Significant Subsidiary
to preserve, renew and keep in full force and effect (i) their respective
legal existence and (ii) their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business, unless in
the case of either the failure of the Guarantor to comply with
subclause (b)(ii) of this Section 5.02 or the failure of a
Significant Subsidiary to comply with clause (b) of this Section 5.02,
such failure could not, based upon the facts and circumstances existing at the
time, reasonably be expected to have a Material Adverse Effect.


 


provided that nothing
in this Section 5.02 shall prohibit any transaction permitted by Section 5.08.


 


Section 5.03         Maintenance of Properties; Insurance.  The Guarantor will, and will cause each of
its Subsidiaries to, (a) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained by and commercially available to companies engaged in
the same or similar businesses operating in the same or similar locations,
except in the case of each of clause (a) and (b) to the extent
that the failure to do so could not, based upon the facts and circumstances
existing at the time, reasonably be expected to have a Material Adverse Effect.


 


Section 5.04         Books and Records; Inspection Rights.  The Guarantor will keep, and will cause each
Consolidated Subsidiary to keep, proper books of record and account in which
true and correct entries shall be made of its business transactions and
activities so that financial statements of the Guarantor that fairly present
its business transactions and activities can be properly prepared in accordance
with GAAP.  The Guarantor will, and will
cause each Significant Subsidiary to, permit any representatives designated by
the Administrative Agent or by any Lender through the Administrative Agent,
upon reasonable prior notice, at all reasonable times and as and to the extent
permitted by applicable law and regulation, and at the Administrative Agent’s
or such Lender’s expense, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances,
accounts and condition with its officers, employees (in the presence of its
officers) and independent accountants (in the presence of its officers); provided
that (i) such designated representatives shall be reasonably acceptable to
the Borrower, shall agree to any reasonable confidentiality obligations
proposed by the Borrower, and shall follow the guidelines and procedures
generally imposed upon like visitors to Borrower’s facilities and (ii) unless
a Default shall have occurred and be continuing, such visits and inspections
shall occur not more than once in any Fiscal Year.


 


Section 5.05         Compliance with Laws.  The Guarantor will, and will cause each
Significant Subsidiary to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where
the failure to do so could not, based upon the facts and circumstances existing
at the time, reasonably be expected to result in a Material Adverse Effect.


 


32





















 


Section 5.06         Use of Proceeds.  The
proceeds of each Borrowing made under this Agreement will be used by the
Borrower for working capital, capital expenditures and other lawful corporate
purposes of the Borrower, including to repay other Debt of the Guarantor and
its Subsidiaries.  No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.


 


Section 5.07         Liens.  The
Guarantor will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, except:


 


(a)           any Lien
existing on any asset on the Closing Date;


 


(b)           any Lien on any
asset securing the payment of all or part of the purchase price of such asset
upon the acquisition thereof by the Guarantor or a Subsidiary or securing Debt
(including any obligation as lessee incurred under a capital lease) incurred or
assumed by the Guarantor or a Subsidiary prior to, at the time of or within one
year after such acquisition (or in the case of real property, the completion of
construction (including any improvements on an existing property) or the
commencement of full operation of such asset or property, whichever is later),
which Debt is incurred or assumed for the purpose of financing all or part of
the cost of acquiring such asset or, in the case of real property, construction
or improvements thereon; provided, that in the case of any such
acquisition, construction or improvement, the Lien shall not apply to any asset
theretofore owned by the Guarantor or a Subsidiary, other than assets so
acquired, constructed or improved;


 


(c)           any Lien
existing on any asset or Stock of any Person at the time such Person is merged
or consolidated with or into the Guarantor or a Subsidiary which Lien was not
created in contemplation of such event;


 


(d)           any Lien
existing on any asset at the time of acquisition thereof by the Guarantor or a
Subsidiary, which Lien was not created in contemplation of such acquisition;


 


(e)           any Lien
arising out of the Refinancing of any Debt secured by any Lien permitted by any
of the subsections (a) through (d) of this Section 5.07, provided
that the principal amount of Debt is not increased (except as grossed-up for
the customary fees and expenses incurred in connection with such Refinancing
and except as a result of the capitalization or accretion of interest) and is
not secured by any additional assets, except as provided in the last sentence
of this Section 5.07;


 


(f)            any Lien to
secure Intercompany Debt;


 


(g)           sales of
accounts receivable or promissory notes to factors or other third-parties in
the ordinary course of business for purposes of collection;


 


(h)           any Lien in
favor of any country or any political subdivision of any country (or any
department, agency or instrumentality thereof) securing obligations arising in 


 


33





















 


connection with partial, progress, advance or other payments pursuant to
any contract, statute, rule or regulation or securing obligations incurred
for the purpose of financing all or any part of the purchase price (including
the cost of installation thereof or, in the case of real property, the cost of
construction or improvement or installation of personal property thereon) of
the asset subject to such Lien (including, but not limited to, any Lien
incurred in connection with pollution control, industrial revenue or similar
financings);


 


(i)            Liens arising
in the ordinary course of its business which (i) do not secure Debt, and (ii) do
not in the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business;


 


(j)            any Lien
securing only Nonrecourse Debt;


 


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


 


(l)            Liens created
pursuant to a Permitted Securitization Transactions;


 


(m)          Liens for
taxes, assessments and governmental charges or levies which are not yet due or
are payable without penalty or of which the amount, applicability or validity
is being contested by the Guarantor or a Subsidiary whose property is subject
thereto in good faith by appropriate proceedings as to which adequate reserves
are being maintained;


 


(n)           Liens securing
judgments that have not resulted in the occurrence of an Event of Default under
clause (k) of Article VI in an aggregate principal amount at any
time outstanding not to exceed $100,000,000; and


 


(o)           Liens not
otherwise permitted by the foregoing clauses (a) through (n) of
this Section 5.07 securing Debt or other obligations (without duplication)
in an aggregate principal amount at any time outstanding not to exceed an
amount equal to 7.5% of Consolidated Tangible Assets at such time.


 


It is understood that any Lien permitted to exist on
any asset pursuant to the foregoing provisions of this Section 5.07 may
attach to the proceeds of such asset and, with respect to Liens permitted
pursuant to subsections (a), (b), (d), (e) (but only with respect to the
Refinancing of Debt secured by a Lien permitted pursuant to subsections (a),
(b), (d)) or (f) of this Section 5.07, may attach to an asset
acquired in the ordinary course of business as a replacement of such former
asset.


 


Section 5.08         Fundamental
Changes.  No Obligor will consolidate,
amalgamate or merge with or into any other Person or sell, lease or otherwise
transfer all or substantially all of the Consolidated assets to any other
Person, unless:


 


(a)           such Obligor is
the surviving corporation, or the Person (if other than such Obligor) formed by
such consolidation or amalgamation or into which such Obligor is merged or 


 


34





















 


amalgamated, or the Person which acquires by sale or other transfer, or
which leases, all or substantially all of the assets of such Obligor (any such
Person, the “Successor”), shall be organized and existing under the laws
of (x) in the case of a Successor to the Borrower, Luxembourg or the
United States, any state thereof or the District of Columbia or (y) in the
case of a Successor to the Guarantor, Bermuda or of the United States, any
state thereof or the District of Columbia and shall expressly assume, in a
writing executed and delivered to the Administrative Agent for delivery to each
of the Lenders, in form reasonably satisfactory to the Administrative Agent,
the due and punctual payment of the principal of and interest on the Loans and
the performance of the other obligations under this Agreement and the other
Loan Documents on the part of such Obligor to be performed or observed, as
fully as if such Successor were originally named as such Obligor in this
Agreement or such other Loan Document; and


 


(b)           immediately
after giving effect to such transaction, no Default shall have occurred and be
continuing; and


 


(c)           such Obligor
has delivered to the Administrative Agent a certificate on behalf of such
Obligor signed by one of its Responsible Officers and an opinion of counsel,
each stating that all conditions provided in this Section 5.08 relating to
such transaction have been satisfied;


 


Upon the satisfaction (or waiver) of the
conditions set forth in this Section 5.08, a Successor to the Borrower or
the Guarantor shall succeed, and may exercise every right and power of, the
Borrower or the Guarantor under this Agreement and the other Loan Documents
with the same effect as if such Successor had been originally named as the
Borrower or the Guarantor herein, and the Borrower or the Guarantor, as the
case may be, shall be relieved of and released from its obligations under this
Agreement and the other Loan Documents.


 


Section 5.09         Financial Covenant.  The
Guarantor will not permit at any time the ratio of (x) Consolidated Total
Debt at such time to (y) Consolidated EBITDA for the then most recently
concluded period of four consecutive fiscal quarters of the Guarantor to exceed
3.50 to 1.00.


 


Section 5.10         Limitation
on Restrictions on Subsidiary Dividends and Other Distributions.  The Guarantor will not, and will not permit
any Subsidiary to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any encumbrance or restriction on the ability of
any Subsidiary, other than the Borrower, to (a) pay dividends or make any
other distributions on its capital stock or any other interest or participation
in its profits, owned by the Guarantor or any Subsidiary, or pay any Debt owed
by any Subsidiary to the Guarantor or any Subsidiary that is a direct or
indirect parent of such former Subsidiary, (b) make loans or advances to
the Guarantor or any Subsidiary that is a direct or indirect parent of such
former Subsidiary or (c) transfer any of its properties or assets to the
Guarantor or any such Subsidiary that is a direct or indirect parent of such
former Subsidiary (or, solely in the case of clause (xii) hereof, any
other Consolidated Person in respect of such Nonrecourse Debt), except for such
encumbrances or restrictions existing under or by reason of:


 


35





















 


(i)            applicable laws and regulations,
judgments and orders and other legal requirements, agreements with non-U.S.
governments with respect to assets or businesses located in their jurisdiction,
or condemnation or eminent domain proceedings,


 


(ii)           this Agreement and any other
agreement or instrument governing Debt containing only such encumbrances and/or
restrictions that are on terms substantially similar in all material respects
to, and in no event more restrictive than, any such encumbrances and/or
restrictions under this Agreement,


 


(iii)          (A) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of the Guarantor or a Subsidiary, or (B) customary restrictions
imposed on the transfer of trademarked, copyrighted or patented materials or
provisions in agreements that restrict the assignment of such agreements or any
rights thereunder,


 


(iv)          provisions contained in the
instruments evidencing or governing Debt or other obligations or agreements, in
each case existing on the date hereof,


 


(vi)          provisions contained in instruments
evidencing or governing Debt or other obligations or agreements of any Person,
in each case, at the time such Person (A) shall be merged or consolidated
with or into the Guarantor or any Subsidiary, (B) shall sell, transfer,
assign, lease or otherwise dispose of all or substantially all of such Person’s
assets to the Guarantor or a Subsidiary, or (C) otherwise becomes a
Subsidiary, provided  that in the case of clause (A), (B) or (C), such
Debt, obligation or agreement was not incurred or entered into, or any such
provisions adopted, in contemplation of such transaction,


 


(vii)         provisions contained in Refinancings,
so long as such provisions are, in the good faith determination of the
Guarantor’s board of directors, not materially more restrictive than those
contained in the respective instruments so Refinanced,


 


(viii)        provisions contained in any instrument
evidencing or governing Debt or other obligations of a Subsidiary Guarantor,


 


(ix)           any encumbrances and restrictions
with respect to a Subsidiary imposed in connection with an agreement which has
been entered into for the sale or disposition of such Subsidiary or its assets,
provided  such sale or disposition otherwise complies with this
Agreement,


 


(x)            the subordination (pursuant to its
terms) in right and priority of payment of any Debt owed by any Subsidiary (the
“Indebted Subsidiary”) to the Guarantor or any other Subsidiary, to any
other Debt of such Indebted Subsidiary, provided  that (A) such Debt is permitted
under this Agreement and (B) the Guarantor’s board of directors has
determined, in good faith, at the time of the creation of such encumbrance or
restriction, that such encumbrance or restriction could not, based upon the
facts and circumstances in existence at the time, reasonably be expected to
have a Material Adverse Effect,


 


36
















 


(xi)           provisions governing
Preferred Stock issued by a Subsidiary or Debt issued or incurred by a
Subsidiary that is owed to the Guarantor or another Subsidiary,


 


(xii)          provisions contained in
instruments or agreements evidencing or governing (A) Nonrecourse Debt or (B)
other Debt of a Subsidiary incurred to finance the acquisition or construction
of fixed or capital assets to the extent, in the case of sub-clause (B),
such instrument or agreement prohibits transfers of the assets financed with
such Debt, and


 


(xiii)         provisions contained in debt
instruments, obligations or other agreements of any Subsidiary which are not
otherwise permitted pursuant to clauses (i) through (xii) of this Section 5.10,
provided  that the aggregate investment of the Guarantor in all such
Subsidiaries (determined in accordance with GAAP) shall at no time exceed the
greater of (a) $300,000,000 or (b) 3% of Consolidated Tangible Assets.


 


The provisions of this Section 5.10
shall not prohibit (x) Liens not prohibited by Section 5.07 or (y) restrictions
on the sale or other disposition of any property securing Debt of any
Subsidiary, provided  such Debt is otherwise permitted by this Agreement.


 


Section 5.11         Transactions with Affiliates.  The Guarantor will not, and will not permit
any Subsidiary to, directly or indirectly, pay any funds to or for the account
of, make any investment (whether by acquisition of Stock or indebtedness, by
loan, advance, transfer of property, guarantee or other agreement to pay,
purchase or service, directly or indirectly, any Debt, or otherwise) in, lease,
sell, transfer or otherwise dispose of any assets, tangible or intangible, to,
or participate in, or effect any transaction in connection with any joint
enterprise or other joint arrangement with, any Affiliate (collectively, “Affiliate Transactions”);  provided, however, that
the foregoing provisions of this Section 5.11 shall not prohibit the
Guarantor or any of its Subsidiaries from:


 


(i)          engaging in any Affiliate
Transaction between or among (x) the Guarantor and any Subsidiary or
Subsidiaries or (y) two or more Subsidiaries,


 


(ii)         declaring or paying any
dividends and distributions on any shares of the Guarantor’s Stock, including
any dividend or distribution payable in shares of the Guarantor’s Stock or Stock
Equivalents,


 


(iii)        making any payments on
account of the purchase, redemption, retirement or acquisition of (x) any
shares of the Guarantor’s Stock or (y) any option, warrant or other right
to acquire shares of the Guarantor’s Stock, including any payment payable in
shares of the Guarantor’s Stock or Stock Equivalents,


 


(iv)       declaring or paying any
dividends or distributions on Stock of any Subsidiary held by the Guarantor or
another Subsidiary,


 


(v)        making sales to or purchases
from any Affiliate and, in connection therewith, extending credit or making
payments, or from making payments for services 


 


37





















 


rendered by any Affiliate,
if such sales or purchases are made or such services are rendered in the
ordinary course of business and on terms and conditions at least as favorable
to the Guarantor or such Subsidiary as the terms and conditions which the
Guarantor would reasonably expect to be obtained in a similar transaction with
a Person which is not an Affiliate at such time,


 


(vi)       making payments of
principal, interest and premium on any Debt of the Guarantor or such Subsidiary
held by an Affiliate if the terms of such Debt are at least as favorable to the
Guarantor or such Subsidiary as the terms which the Guarantor would reasonably
expect to have been obtained at the time of the creation of such Debt from a
lender which was not an Affiliate,


 


(vii)      participating in, or
effecting any transaction in connection with, any joint enterprise or other
joint arrangement with any Affiliate if the Guarantor or such Subsidiary
participates in the ordinary course of its business and on a basis no less
advantageous than the basis on which such Affiliate participates,


 


(viii)     paying or granting
reasonable compensation, indemnities, reimbursements and benefits to any
director, officer, employee or agent of the Guarantor or any Subsidiary, or


 


(ix)        engaging in any Affiliate
Transaction not otherwise addressed in subsections (i) through (ix) of
this Section 5.11, the terms of which are not less favorable to the
Guarantor or such Subsidiary than those that the Guarantor or such Subsidiary
would reasonably expect to be obtained in a comparable transaction at such time
with a Person which is not an Affiliate.


 


Section 5.12         Subsidiary Guarantors.  The Borrower will cause each Subsidiary of
the Borrower that now or hereafter Guarantees any Material Debt of the Borrower
for or in respect of borrowed money (other than Debt of the Borrower to any
other Subsidiary) to promptly thereafter (and in any event within 30 days
of executing such Guarantee) cause such Subsidiary to (a) become a Subsidiary
Guarantor by executing and delivering to the Administrative Agent a Subsidiary
Guaranty, and (b) deliver to the Administrative Agent documents of the
types referred to in Section 4.01(d) and favorable opinions of
counsel to such Subsidiary (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the Subsidiary
Guaranty of such Subsidiary), all in form, content and scope reasonably
satisfactory to the Administrative Agent.


 


Section 5.13         Subsidiary Debt.  The Guarantor will not at any time permit the
aggregate outstanding principal amount of Debt of the Consolidated Subsidiaries
to exceed an amount equal to $750,000,000, provided that for purposes of
this Section 5.13, “Debt” shall not include (i) Permitted Acquired
Debt of any Consolidated Subsidiary, (ii) Debt of any Consolidated
Subsidiary (other than the Borrower) outstanding as of the Closing Date, and
any Refinancings thereof, (iii) Debt of the Borrower or (iv) obligations
under any Permitted Securitization Transaction, to the extent otherwise
constituting Debt.


 


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ARTICLE
VI




Events of Default


 


Section 6.01         Events of Default.  If any of the following events (“Events of
Default”) shall occur:


 


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


 


(b)           the Borrower
shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article)
payable under this Agreement or the other Loan Documents, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of five (5) Business Days;


 


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


 


(d)           either Obligor
shall fail to observe or perform any covenant, condition or agreement contained
in (i) Section 5.06, 5.07, 5.08, 5.10, 5.11, 5.12 or 5.13 and such failure
shall not be remedied within five Business Days after any Responsible Officer
obtains knowledge thereof or (ii) Section 5.09;


 


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


 


(f)            the Guarantor
or any Subsidiary shall fail to make any payment in respect of any Material
Debt, when and as the same shall become due and payable, and such failure shall
continue beyond any applicable grace period (but in any event, in the case of
interest, fees or other amounts other than principal, for a period of at least
five Business Days);


 


(g)           any event or condition
occurs that results in any Material Debt becoming due prior to its scheduled
maturity; provided that this clause (g) shall not apply to (i) secured
Debt that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Debt, (ii) any conversion, repurchase or
redemption of any Material Debt scheduled by the terms thereof to occur on a
particular date, any conversion of any Material Debt initiated by a holder
thereof pursuant to the terms thereof or any optional prepayment, repurchase 


 


39





















 


or redemption of any Material Debt, in each case not subject to any
contingent event or condition related to the creditworthiness, financial
performance or financial condition of the Guarantor or any Subsidiary or (iii) any
repurchase or redemption of any Material Debt pursuant to any put option
exercised by the holder of such Material Debt; provided that such put
option is exercisable at times specified in the terms of the Material Debt and
not by its terms solely as a result of any contingent event or condition
related to the creditworthiness, financial performance or financial condition
of the Guarantor or the applicable Subsidiaries;


 


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


 


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


 


(j)            the Guarantor
or any Significant Subsidiary shall admit in writing its inability or fail
generally to pay its debts as they become due;


 


(k)           one or more
judgments or orders for the payment of money in an aggregate amount in excess
of $30,000,000 (after deducting amounts covered by insurance, except to the
extent that the insurer providing such insurance has declined such coverage or
indemnification) shall be rendered against the Guarantor or any Subsidiary or
any combination thereof and, within 60 days after entry thereof, such
judgment or order is not discharged or execution thereof stayed pending appeal,
or within 60 days after the expiration of any such stay, such judgment or
order is not discharged;


 


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


 


(m)          (x) any
person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the SEC under
said Act) of 40% 


 


40





















 


or more of the outstanding shares of common stock of the Guarantor; or (y) on
the last day of any period of twelve consecutive calendar months, a majority of
members of the board of directors of the Guarantor shall no longer be composed
of individuals (i) who were members of said board of directors on the
first day of such twelve consecutive calendar month period or (ii) whose
election or nomination to said board of directors was approved by individuals
referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of said board of directors;


 


(n)           any Loan
Document shall cease to be valid and enforceable against any Obligor or
Subsidiary Guarantor party thereto (except for the termination of a Subsidiary
Guaranty in accordance with its terms), or any Obligor or Subsidiary Guarantor
shall so assert in writing; or


 


(o)           the Borrower
(or any permitted successor pursuant to Section 5.08 shall cease to be a
Wholly-Owned Consolidated Subsidiary of the Guarantor;


 


then, and in every such event (other than an
event described in clause (h) or (i) of this Article with
respect to the Borrower or the Guarantor), and at any time thereafter during
the continuance of such event, the Administrative Agent shall, at the request
of, or may, with the consent of, the Required Lenders, by notice to the
Borrower, take either or both of the following actions, at the same or
different times:  (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare
the 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, and thereupon the
principal amount of all such outstanding Loans together with all such interest
and other amounts so declared to be due and payable, shall become due and
payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived by the Obligors; and in case
of any event described in clause (h) or (i) of this Article with
respect to the Borrower or the Guarantor, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the Borrower
accrued under any Loan Document, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Obligors.


 


ARTICLE
VII




The Administrative Agent


 


Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent 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, together with such actions and
powers as are reasonably incidental thereto.


 


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



 


41

















 


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
Guarantor 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.


 


The Administrative Agent shall not have any duties
or obligations except those expressly set forth herein.  Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby 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 in Section 10.02), 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 this Agreement, the other Loan Documents or
applicable law, and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Guarantor
or any of its Subsidiaries 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 Section 10.02) 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 Borrower or a Lender and 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 the other Loan Documents, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth
in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the 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 


 


42

















 


hereunder to the making of a
Loan that by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such
Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel, accountants
or experts.


 


The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder 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.


 


The Administrative Agent may at any time give notice
of its resignation to the Lenders and the Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
the Borrower, to appoint a successor, which shall be a commercial bank with an
office in New York, New York, or an Affiliate of any such commercial bank with
an office in New York, New York.  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, appoint a successor Administrative Agent meeting
the qualifications set forth above, provided that if the Administrative Agent
shall notify the Borrower 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 directly, until
such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this paragraph. 
The successor shall be consented to by the Borrower at all times other
than during the existence of an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed). 
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 (if not already discharged
therefrom as provided above in this paragraph). 
The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. 
After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.03
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties 


 


43

















 


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.


 


Each Lender 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 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 or any related agreement or any document
furnished hereunder or thereunder.


 


The Lenders hereby irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any
Subsidiary Guarantor from its obligations under such Subsidiary Guarantor’s
Subsidiary Guaranty (i) if such Person ceases to exist or to be a
Subsidiary (or substantially contemporaneously with such release will cease to
exist or to be a Subsidiary), in each case as a result of a transaction
permitted hereunder, or (ii) otherwise in accordance with Section 4.06(b) of
the relevant Subsidiary Guaranty.


 


Anything herein to the contrary notwithstanding,
none of the Global Coordinators, Joint Bookrunners or Joint Lead Arrangers
listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement, except in its capacity, as applicable,
as the Administrative Agent or a Lender hereunder.


 


ARTICLE
VIII




Guarantee


 


Section 8.01         The
Guarantee.  The
Guarantor hereby unconditionally and irrevocably guarantees the full and
punctual payment when due (whether at stated maturity, by mandatory prepayment,
by acceleration or otherwise) of the principal of and interest on the Loans,
the Notes and all other amounts whatsoever at any time or from time to time
payable or becoming payable under this Agreement or the other Loan
Documents.  This is a continuing
guarantee and a guarantee of payment and not merely of collection.  Upon failure by the Borrower to pay
punctually any such amount when due as aforesaid, the Guarantor shall forthwith
on demand pay the amount not so paid at the place and in the manner specified
in this Agreement.


 


Section 8.02         Guarantee
Unconditional.  The
obligations of the Guarantor hereunder shall be unconditional and absolute,
and, without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected, at any time by:


 


(a)           any extension,
renewal, settlement, compromise, waiver or release in respect of any obligation
of the Borrower under any Loan Document, by operation of law or otherwise;


 


44





















 


(b)           any
modification or amendment of or supplement to any Loan Document;


 


(c)           any release,
impairment, non-perfection or invalidity of any direct or indirect security for
any obligation of the Borrower under any Loan Document;


 


(d)           any change in
the corporate existence, structure or ownership of the Borrower, or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting
the Borrower or its assets or any resulting release or discharge of any
obligation of the Guarantor or the Borrower contained in any Loan Document;


 


(e)           the existence
of any claim, set-off or other rights which the Guarantor may have at any time
against the Borrower, the Administrative Agent, any Lender or any other Person,
whether in connection herewith or any unrelated transactions, provided
that nothing herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim;


 


(f)            any invalidity
or unenforceability relating to or against the Borrower for any reason of any
Loan Document, or any provision of applicable law or regulation purporting to
prohibit the payment by the Borrower, in the currency and funds and at the time
and place specified herein, of any amount payable by it under any Loan
Document; or


 


(g)           any other act
or omission to act or delay of any kind by the Borrower, the Administrative
Agent, any Lender or any other Person, or any other circumstance whatsoever
which might, but for the provisions of this paragraph, constitute a legal or
equitable discharge or defense of a guarantor or surety.


 


Section 8.03         Discharge
Only upon Payment in Full; Reimbursement in Certain Circumstances.  The guarantee and other agreements in this Article VIII
shall remain in full force and effect until the Commitments shall have
terminated and the principal of and interest on the Loans, the Notes and all
other amounts whatsoever payable by the Borrower under any Loan Document shall
have been finally paid in full.  If at
any time any payment of any such amount payable by the Borrower under any Loan
Document is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, the
Guarantor’s obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had been due but not made at
such time.


 


Section 8.04         Waiver by
the Guarantor.  The
Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and
any notice not provided for herein, as well as any requirement that at any time
any action be taken by any Person against the Borrower or any other Person.


 


Section 8.05         Subrogation.  Upon making any payment hereunder with
respect to the Borrower, the Guarantor shall be subrogated to the rights of the
payee against the Borrower with respect to such payment; provided that
the Guarantor shall not enforce any payment by way of subrogation until all
amounts of principal of and interest on the Loans and all other amounts payable
by the Borrower under any Loan Document has been paid in full and the
Commitments have been terminated.


 


45

















 


Section 8.06         Stay of
Acceleration.  In the
event that acceleration of the time for payment of any amount payable by the
Borrower under any Loan Document is stayed upon insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of this Agreement shall nonetheless be payable by
the Guarantor hereunder forthwith on demand by the Required Lenders.


 


ARTICLE
IX




Yield Protection,
Illegality and Taxes


 


Section 9.01         Alternate
Rate of Interest.  If prior to
the commencement of any Interest Period for a Eurodollar Borrowing:


 


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


 


(b)           the
Administrative Agent is advised by the Required Lenders that the LIBO Rate for
such Interest Period (together with any amounts payable pursuant to Section 9.03
or 9.05) will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in such Borrowing for such Interest
Period;


 


then the Administrative Agent shall give
notice thereof to the Borrower and the Lenders by telephone or facsimile or
electronic mail as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing. 
In the case of clause (b) above, during any such period of
suspension each Lender shall, from time to time upon request from the Borrower,
certify its cost of funds for each Interest Period to the Borrower and the
Administrative Agent as soon as practicable (but in any event not later than 10
Business Days after any such request).


 


Section 9.02         Illegality.  Notwithstanding any other provision of any
Loan Document, if any Lender shall notify the Administrative Agent (and provide
to the Borrower an opinion of counsel to the effect) that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it
is unlawful, for such Lender or its lending office for Eurodollar Borrowings to
perform its obligations hereunder to make Eurodollar Loans or to fund or
maintain Eurodollar Loans hereunder, (i) each Eurodollar Loan of such
Lender will automatically, upon such demand, convert into an ABR Loan that
bears interest at the rate set forth in Section 2.12(a) and (ii) the
obligation of such Lender to make or continue, or to convert ABR Loans into,
Eurodollar Loans shall be suspended until the Administrative Agent shall notify
the Borrower and such Lender that the circumstances causing such suspension no
longer exist and such Lender shall make the ABR Loans in the amount and on the
dates that it would have been requested to make Eurodollar Loans had no such
suspension been in effect.


 


46




















 


Section 9.03         Increased Costs.


 


(a)           If any Change
in Law shall:


 


(i)          impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by, any Lender; or


 


(ii)         impose on any Lender or the
London interbank market any other condition affecting any Loan Document or
Eurodollar Loans made by such Lender;


 


and the result of any of the foregoing has
been to increase the cost to such Lender of making or maintaining any Eurodollar
Loan (or of maintaining its obligation to make any such Loan) or to reduce the
amount of any sum received or receivable by such Lender hereunder (whether of
principal, interest or otherwise) (excluding any such increased costs or
reduction in amount resulting from Taxes or Other Taxes, as to which Section 9.05
shall govern, or resulting from reserve commitments contemplated by Section 9.03(c)),
then from time to time within 30 days of written demand therefor (subject
to Section 9.06) the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.


 


(b)           If any Lender
determines that any Change in Law regarding capital requirements has the effect
of reducing the rate of return on such Lender’s capital or on the capital of
such Lender’s holding company, if any, as a consequence of any Loan Document or
the Loans made by such Lender, to a level below that which such Lender or such
Lender’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s policies and the policies of such Lender’s
holding company with respect to capital adequacy), then from time to time
within 30 days of written demand therefor (subject to Section 9.06)
the Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender’s holding company for any such reduction
suffered.


 


(c)           At any time
that any Lender is required to establish or maintain reserves in respect of its
Eurodollar Loans under FRB Regulation D, such Lender may require the Borrower
to pay, contemporaneously with each payment of interest on a Eurodollar Loan
made by such Lender, additional interest on such Eurodollar Loan at a rate per annum
determined by such Lender be sufficient to compensate it for the cost to it of
maintaining, or the reduction in its total return in respect of, such
Eurodollar Loan, up to but not exceeding the excess of (i) (A) the
applicable LIBO Rate divided by (B) one minus the Eurodollar Reserve
Percentage, minus (ii) the applicable LIBO Rate.  Any Lender wishing to require payment of such
additional interest (x) shall so notify the Borrower and the
Administrative Agent, in which case such additional interest on the Eurodollar
Loans of such Lender shall be payable to such Lender at the time and place
indicated at which interest otherwise is payable on such Eurodollar Loan, with
respect to each Interest Period commencing at least three Business Days after
the giving of such notice and (y) shall notify the Borrower at least five
Business Days prior to each date on which interest is payable on the Eurodollar
Loans of the amount then due it under this Section.


 


47





















 


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


 


Section 9.04         Break
Funding Payments.  In the
event of (a) the payment of any principal of any Eurodollar Loan other
than on the last day of an Interest Period applicable thereto (including as a
result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Eurodollar Loan on the date
specified in any oral or written notice given pursuant hereto or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to Section 10.04(e),
then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event (including any loss or
expense arising from the redeployment of funds obtained by it to maintain such
Eurodollar Loan or from fees payable to terminate the deposits from which such
funds were obtained, but excluding any loss of anticipated profits) within
10 days of written demand therefor (subject to Section 9.06).


 


Section 9.05         Taxes.


 


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


 


(b)           The Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law without duplication with any obligation to pay Other Taxes
to a Governmental Authority under Section 9.05(a).


 


(c)           The Borrower
shall pay and indemnify, defend and hold harmless the Administrative Agent and
each Lender within 30 days after written demand therefor (subject to Section 9.06),
for the full amount of any Indemnified Taxes or Other Taxes required to be paid
by the Administrative Agent or such Lender, as the case may be, on or with
respect to any payment by or on account of any obligation of the Borrower under
any Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) 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 


 


48





















 


legally imposed or asserted by the relevant Governmental
Authority.  As soon as practicable after
any payment of Indemnified Taxes or Other Taxes to a Governmental Authority by
the Administrative Agent or such Lender, the Administrative Agent or such
Lender, as the case may be, shall deliver to the Borrower the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment or other evidence of such payment reasonably satisfactory to the Borrower.


 


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


 


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


 


(f)            If the
Administrative Agent or a Lender determines, in its good faith judgment, that
it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 9.05, it shall pay over such
refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 9.05 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or
such Lender in the event the Administrative Agent or such Lender is required to
repay such refund to such Governmental Authority.  This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.


 


Section 9.06         Matters
Applicable to all Requests for Compensation.  If any Lender or the Administrative Agent is
claiming compensation under Section 9.03, 9.04 or 9.05, it shall deliver
to the Administrative Agent, who shall deliver to the Borrower
contemporaneously with the demand for payment, a certificate setting forth in
reasonable detail the calculation of any additional amount or amounts to be
paid to it hereunder and the basis used to determine such amounts and such
certificate shall be conclusive in the absence of manifest error.  In determining such amount, such Lender or
the Administrative Agent may use any reasonable averaging and attribution
methods.  In any such certificate
claiming compensation under Section 9.03(b), such Lender shall certify
that the claim for additional amounts referred to therein is generally
consistent with such Lender’s treatment of similarly situated customers of such
Lender whose 


 


49





















 


transactions with such Lender are similarly affected by the change in
circumstances giving rise to such payment, but such Lender shall not be
required to disclose any confidential or proprietary information therein.  This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.


 


Section 9.07         Mitigation
Obligations.  If any Lender
requests compensation under Section 9.03, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 9.05, then such Lender shall
use reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 9.03 or 9.05, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


ARTICLE
X




Miscellaneous


 


Section 10.01       Notices.


 


(a)           Except in the
case of notices and other communications expressly permitted to be given by
telephone or by other means of communication (and subject to paragraph (b) below),
all notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by facsimile or electronic mail, as
follows:


 


(i)          if to the Borrower


 


Tyco International Finance S.A.

29 Avenue de la Porte Neuve


L2227 Luxembourg

Attn:  Enrica Maccarini


Tel:
+352 266 378 1


Fax:
+352 266 378 91


email:
emaccarini@tyco.com


 


with
a copy to:


 


Tyco
International Management Company


9
Roszel Rd.


Princeton,
NJ  08540


Attention: 
General Counsel


Tel: 
609-720-4200


Fax: 
609-720-4326


 


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(ii)         if to the Guarantor


 


Tyco
International Ltd.

90 Pitts Bay Road, Second Floor


Pembroke
HM 08, Bermuda


Attention:
Executive Vice President and General Counsel


Tel:
 441-292-8674


Fax:
441-295-9647


 


(iii)        if to the Administrative
Agent, to its applicable address set forth on Schedule 10.01;


 


and


 


(iv)       if to any other Lender, to
it at its address (or facsimile number or electronic mail address telephone
number) set forth on Schedule 10.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party to this Agreement 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 Borrower and the
Administrative Agent.


 


(b)           Notices and
other communications to the Administrative Agent and the Lenders hereunder may
be delivered or furnished by electronic communications.  In addition to provisions of this Agreement
expressly specifying that notices and other commitments may be delivered
telephonically or electronically, each of the Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications; provided
that approval of such procedures may be limited to particular notices or
communications.


 


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


 


(d)           The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Borrowing Requests and Interest Election
Requests) purportedly given by or on behalf of the Borrower.


 


Section 10.02       Waivers; Amendments.


 


(a)           No failure or
delay by the Administrative Agent or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to 


 


51





















 


enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power.  The rights and remedies of the Administrative
Agent and the Lenders hereunder are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. 
No waiver of any provision of this Agreement or any other Loan Document
or consent to any departure by either Obligor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.  Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent or any Lender may have had
notice or knowledge of such Default at the time.


 


(b)           Neither this
Agreement nor the Notes or any Subsidiary Guaranty or any provision hereof or
thereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Obligors, the Subsidiary Guarantors
(to the extent applicable) and the Required Lenders or by the Obligors, the
Subsidiary Guarantors (to the extent applicable) and the Administrative Agent
with the consent of the Required Lenders; provided that no such
agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender directly affected
thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender directly affected thereby, (iv) change Section 2.13(b) or
(c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) release the
Guarantor from its obligations under Article VIII or any Subsidiary
Guarantor which is a Significant Subsidiary from its obligations under its
Subsidiary Guaranty, without the written consent of each Lender, (vi) change
any of the provisions of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage
of Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided  further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent
under any Loan Document without the prior written consent of the Administrative
Agent. Notwithstanding the foregoing provisions of this Section 10.02(b),
to the extent that the Borrower or any of its Affiliates shall have acquired
Commitments or Loans, the consent of the Borrower or any of its Affiliates
(solely in its capacity as Lender) otherwise required under this Section 10.02(b) for
any waiver, amendment or modification shall not be required.


 


Section 10.03       Expenses; Indemnity; Damage Waiver.


 


(a)           The Borrower
shall pay (i) all reasonable out of pocket expenses incurred by the
Administrative Agent, the Global Coordinators and their Affiliates, including
the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof and thereof 


 


52





















 


(whether or not the transactions contemplated hereby or thereby shall
be consummated), and (ii) while a Default has occurred and is continuing,
all out-of-pocket expenses incurred by the Administrative Agent and the
Lenders, including reasonable fees, charges and disbursements of counsel 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
hereunder, including all such out-of-pocket expenses incurred during any
workout, or restructuring negotiations in respect of such Loans.


 


(b)           The Borrower
shall indemnify the Administrative Agent and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of any actual or prospective claim, litigation, investigation or proceeding
(whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto) relating to (A) the execution or
delivery of this Agreement or 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 the consummation of the
Transactions or any other transactions contemplated hereby, (B) any Loan
or the use of the proceeds therefrom, (C) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
the Guarantor or any of its Subsidiaries, or any Environmental Liability
related in any way to the Guarantor or any of its Subsidiaries; 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) have
resulted from the gross negligence or willful misconduct of such Indemnitee, as
determined by a court of competent jurisdiction by final and nonappealable
judgment (y) resulted from a breach of the confidentiality provisions
contained in Section 10.14 by such Indemnitee or (z) resulted from a
dispute solely among the Lenders that does not arise from any Obligor’s or
Subsidiary Guarantor’s breach of its obligations under any Loan Document or
applicable law.  If any claim,
litigation, investigation or proceeding is asserted against any Indemnitee,
such Indemnitee shall, to the extent permitted by applicable law or regulation
in the opinion of its counsel, notify the Borrower as soon as reasonably
practicable, but the failure to so promptly notify the Borrower shall not
affect the Borrower’s obligations under this Section unless such failure
materially prejudices the Borrower’s right to participate in the contest of
such claim, litigation, investigation or proceeding, as hereinafter
provided.  If requested by the Borrower
in writing, such Indemnitee shall make reasonable good faith efforts to contest
the validity, applicability and amount of such claim, litigation, investigation
or proceeding and, except to the extent prohibited by applicable law or
regulations or as would otherwise be unreasonable in the circumstances or
contrary to the internal policies of the Indemnitee as generally applied, shall
permit the Borrower to participate in such contest.  Any Indemnitee that proposes to settle or
compromise any claim, litigation, investigation or proceeding for which the
Borrower may be liable for payment of indemnity hereunder shall give the
Borrower written notice of the terms of such proposed settlement or compromise
reasonably in advance of settling or compromising such claim or proceeding and
shall obtain the Borrower’s prior written consent (not to be unreasonably
withheld).


 


53





















 


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


 


(d)           To the fullest
extent permitted by applicable law, the Borrower shall not 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 or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the Transactions, any Loan or the use of the
proceeds thereof.  No Indemnitee referred
to in paragraph (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 or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the Transactions.


 


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


 


Section 10.04       Successors and Assigns.


 


(a)           The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that (i) other than as contemplated by Section 5.08, neither the Guarantor
nor the Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender (and any attempted assignment or transfer by the
Guarantor or the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. 
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants (to the extent provided
in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


 


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


 


54

















 


(A)          the Borrower, provided
that no consent of the Borrower shall be required for an assignment to a
Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default
under clause (a), (b), (h), (i) or (j) of Article VI has
occurred and is continuing, any other Person (other than a natural person); and


 


(B)           the Administrative Agent, provided
that no consent of the Administrative Agent shall be required for an assignment
to a Lender, an Affiliate of a Lender or for an assignment by a Lender to an
Approved Fund with respect to such Lender.


 


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


 


(A)          except in the case of an
assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender’s Commitment or Loans, the
amount of the Commitment or Loans of the assigning Lender subject to each such
assignment, and the amount of the Commitment or Loans of the assigning Lender
remaining after each such assignment (in each case determined as of the date
the Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent), in each case shall not be less than $10,000,000
unless each of the Borrower and the Administrative Agent otherwise consent
(each such consent not to be unreasonably withheld or delayed), provided
that no such consent of the Borrower shall be required if an Event of Default
under clause (a), (b), (h), (i) or (j) of Article VI has
occurred and is continuing;


 


(B)           each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement;


 


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


 


(D)          in the case of a proposed
assignment to a non-U.S. Affiliate of a Lender or a non-U.S. Approved Fund, for
which the Borrower’s consent is not required, the assigning Lender shall
provide three Business Days’ written notice to the Borrower of such proposed
assignment.


 


For
the purposes of this Section 10.04(b), the term “Approved Fund” has
the following meaning:


 


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


 


55
















 


(b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


(iii)        Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of
this Section, from and after the effective date specified in each Assignment
and Assumption, the assignee thereunder shall be a party 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 9.03, 9.04, 9.05 and 10.03).  Upon request, the Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender, and the Note
theretofore held by the assignor Lender shall be returned to the Borrower in
exchange for a new Note, payable to the assignee Lender and reflecting its
retained interest (if any) hereunder. 
Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section 10.04 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.


 


(iv)       The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans 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 Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.


 


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


 


(c)           (i)            Any
Lender may, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to any Person (other than a natural
Person or the Borrower or any of the Borrower’s Affiliates or subsidiaries)
(each a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (A) such Lender’s


 


56

















 


obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 10.02(b) that affects such Participant.  Subject to paragraph (d) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 9.03, 9.04 and 9.05  to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section (except that, although
the selling Lender shall have a direct claim against the Borrower for amounts
arising under such Sections in respect of the Participant’s interest
(calculated as if the Participant held such interest directly), the Participant
shall have no direct claim against the Borrower pursuant to such
Sections).  To the extent permitted by
law, each Lender shall be entitled to exercise rights under Section 10.08
with respect to deposits held by or obligations owing by any Participant in
such Lender’s Loans or Commitments, provided that, for the avoidance of doubt,
such exercise shall be subject to the obligations of such Lender under Section 2.13(c).  For the avoidance of doubt, no Participant
shall have any contractual claim against the Borrower, and the Borrower shall
have no obligation to any Participant, under this Agreement or the other Loan
Documents. Furthermore, no Lender shall be treated under this Agreement as an
agent of any Participant with respect to any obligations of the Borrower to
such Lender under this Agreement or the other Loan Documents.


 


(d)           A Participant shall not be entitled to
receive any greater payment under Sections 9.03 or 9.05  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 Borrower’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 9.05
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 9.05(e) as
though it were a Lender.


 


(e)           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 without limitation any pledge or assignment to secure obligations to
a Federal Reserve Bank, and this Section shall not apply to any such
pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


(f)            If (w) any Lender requests
compensation under Section 9.03, (x) the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 9.05, (y) any Lender
defaults in its obligation to fund Loans hereunder or (z) any Lender
refuses to consent to any amendment or waiver under this Agreement which
pursuant to the terms of Section 10.02 requires the consent of all Lenders



 


57

















 


or all affected Lenders and with respect to
which the Required Lenders shall have granted their consent, then the Borrower
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 above in
Section 10.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i) such
assigning Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (ii) in the case of any such assignment
resulting from a claim for compensation under Section 9.03 or payments
required to be made pursuant to Section 9.05, such assignment will result
in a reduction in such compensation or payments.  A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.


 


(g)           Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”)
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof.  Each party hereto hereby agrees that (i) neither
the grant to any SPC nor the exercise by any SPC of such option shall increase
the costs or expenses or otherwise increase or change the obligations of the
Borrower under this Agreement (including its obligations under Section 9.03),
(ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii) the
Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. 
The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender.  In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior debt of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or
any State thereof.  Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to,
but without prior consent of the Borrower and the Administrative Agent and with
the payment of a processing fee of $3,500, assign all or any portion of its
right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of
Loans to any rating agency, commercial paper dealer or provider of any surety
or Guarantee or credit or liquidity enhancement to such SPC.


 


58

















 


(h)           Notwithstanding
anything to the contrary contained herein, any Lender that is a Fund may create
a security interest in all or any portion of the Loans owing to it and the
Note, if any, held by it to the trustee for holders of obligations owed, or
securities issued, by such Fund as security for such obligations or securities,
provided that unless and until such trustee actually becomes a Lender in
compliance with the other provisions of this Section 10.04, (i) no
such pledge shall release the pledging Lender from any of its obligations under
the Loan Documents and (ii) such trustee shall not be entitled to exercise
any of the rights of a Lender under the Loan Documents even though such trustee
may have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.


 


Section 10.05       Survival.  All
covenants, agreements, representations and warranties made by the Obligors
herein and in the other Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or the
other Loan Documents shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement
and the making of any Loans, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Administrative Agent
or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement or the other Loan Documents is outstanding and unpaid and so long as
the Commitments have not expired or terminated. 
The provisions of Sections 9.03, 9.04, 9.05 and 10.03 and Article VII
shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or the termination of
this Agreement, any other Loan Document or any provision hereof or thereof.


 


Section 10.06       Counterparts; Integration; Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and thereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof or thereof.  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.  Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a
signature page of this Agreement by facsimile shall be effective as
delivery of a manually executed counterpart of this Agreement.


 


59

















 


Section 10.07       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.


 


Section 10.08       Right of Setoff.  If an
Event of Default shall have occurred and be continuing, upon the making of the
request, or the granting of the consent, if required under Article VI to
authorize the Administrative Agent to declare the Loans due and payable, each
Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by applicable law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender or Affiliate to or for the
credit or the account of the Borrower or the Guarantor against any and all of
the obligations of the Borrower or the Guarantor now or hereafter existing
under this Agreement or the other Loan Documents to such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement
or any other Loan Document and although such obligations of the Borrower or the
Guarantor may be contingent or unmatured or are owed to a branch or office of
such Lender different from the branch or office holding such deposit or
obligated on such indebtedness.  The
rights of each Lender and its Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that
such Lender or its Affiliates may have. 
Each Lender agrees to notify the Borrower and the Administrative Agent
promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.


 


Section 10.09       Governing Law;
Jurisdiction; Consent to Service of Process.


 


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


 


(b)           Each Obligor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the other Loan Documents, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding 


 


60

















 


relating to this Agreement or any other Loan
Document against the Obligors or their respective properties in the courts of
any jurisdiction.


 


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


 


(d)           Each Obligor hereby irrevocably designates
and appoints CT Corporation System, having an office on the date hereof at 111
Eighth Avenue, New York, New York 10011 as its authorized agent, to accept and
acknowledge on its behalf, service of any and all process which may be served
in any suit, action or proceeding of the nature referred to in paragraph (b) hereof
in any Federal or New York State court sitting in New York City.  Each Obligor represents and warrants that
such agent has agreed in writing to accept such appointment and that a true
copy of such designation and acceptance has been delivered to the
Administrative Agent.  If such agent
shall cease so to act, each Obligor covenants and agrees to designate
irrevocably and appoint without delay another such agent satisfactory to the
Administrative Agent and to deliver promptly to the Administrative Agent
evidence in writing of such other agent’s acceptance of such appointment.


 


(e)           Each Lender and the Administrative Agent
irrevocably consents to service of process in the manner provided for notices
in Section 10.01.


 


(f)            Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


 


Section 10.10       Waiver of Jury Trial. 
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.


 


Section 10.11       Waiver of Immunities. 
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IF EITHER OBLIGOR HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY (SOVEREIGN OR OTHERWISE) FROM ANY LEGAL
ACTION, SUIT OR 


 


61

















 


PROCEEDING, FROM JURISDICTION OF ANY COURT OR
FROM SET-OFF OR ANY LEGAL PROCESS (WHETHER SERVICE OR NOTICE, ATTACHMENT PRIOR
TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT
OR OTHERWISE) WITH RESPECT TO ITSELF OR ANY OF ITS PROPERTY, SUCH OBLIGOR
HEREBY IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT.  EACH OBLIGOR AGREES THAT THE
WAIVERS SET FORTH ABOVE SHALL BE TO THE FULLEST EXTENT PERMITTED UNDER THE FOREIGN
SOVEREIGN IMMUNITIES ACT OF 1976 OF THE UNITED STATES OF AMERICA AND ARE
INTENDED TO BE IRREVOCABLE AND NOT SUBJECT TO WITHDRAWAL FOR PURPOSES OF SUCH
ACT.


 


Section 10.12       Judgment Currency.  If,
under any applicable law and whether pursuant to a judgment being made or
registered against either Obligor or for any other reason, any payment under or
in connection with this Agreement or any other Loan Document, is made or
satisfied in a currency (the “Other Currency”) other than that in which
the relevant payment is due (the “Required Currency”) then, to the
extent that the payment (when converted into the Required Currency at the rate
of exchange on the date of payment or, if it is not practicable for the party
entitled thereto (the “Payee”) to purchase the Required Currency with
the Other Currency on the date of payment, at the rate of exchange as soon
thereafter as it is practicable for it to do so) actually received by the Payee
falls short of the amount due under the terms of this Agreement or any other
Loan Document, such Obligor shall, to the extent permitted by law, as a
separate and independent obligation, indemnify and hold harmless the Payee
against the amount of such shortfall. For the purpose of this Section, “rate
of exchange” means the rate at which the Payee is able on the relevant date
to purchase the Required Currency with the Other Currency and shall take into
account any premium and other costs of exchange.


 


Section 10.13       Headings.  Article and
Section headings and the Table of Contents used herein and in the other
Loan Documents are for convenience of reference only, are not part of this
Agreement or any other Loan Document and shall not affect the construction of,
or be taken into consideration in interpreting, this Agreement or any other
Loan Document.


 


Section 10.14       Confidentiality.  Each
of the Administrative Agent and the Lenders shall maintain the confidentiality
of the Information (as defined below) and shall not use the Information except
for purposes relating directly to this Agreement, the other Loan Documents and
the Transactions, except that Information may be disclosed by the
Administrative Agent and the Lenders (a) to their and their Affiliates’
directors, officers, managers, administrators, trustees, partners, advisors,
employees and agents whom they determine need to know such Information in
connection with matters relating directly to this Agreement, the other Loan
Documents and the Transactions, 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 and the Administrative Agent or the
applicable Lenders shall be responsible for breach of this Section by any
such Person to whom it disclosed such Information), (b) to the extent
requested by any governmental authority or
regulatory agency (including any self-regulatory authority, such as the
National Association of Insurance 


 


62

















 


Commissioners), (c) to the extent
required by applicable laws or regulations or upon order of any court or
administrative agency of competent jurisdiction, to the extent required by such
order and not effectively stayed on appeal or otherwise, or as otherwise required
by law; provided that in the case of any intended disclosure under this
clause (c), the recipient thereof shall (unless otherwise required by
applicable law) give the Guarantor not less than five Business Days’ prior
notice (or such shorter period as may, in the good faith discretion of the
recipient, be reasonable under the circumstances or may be required by any
court or agency under the circumstances), specifying the Information involved
and stating such recipient’s intention to disclose such Information (including
the manner and extent of such disclosure) in order to allow the Guarantor an
opportunity to seek an appropriate protective order, (d) to any other
party hereto, (e) in connection with the exercise of any remedies under
this Agreement, any other Loan Document or any action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement in writing to be
bound by the provisions of this Section (and of which the Guarantor shall
be a third party beneficiary) or in the case of a repurchase arrangement (“repo
transaction”) subject to an arrangement to be bound by provisions at least as
restrictive as this Section, to (i) any assignee of or Participant in, or
any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or any other Loan Document or (ii) any actual or
prospective counterparty (or its managers, administrators, trustees, partners,
directors, officers, employees, agents, advisors and other representatives) to
any swap or derivative or similar transaction under which payments are made by
reference to the Borrower and its obligations, this Agreement or payments
hereunder, (iii) any rating agency or (iv) the CUSIP Service Bureau
or any similar organization, (g) with the written consent of the Borrower
referencing this Section 10.14, or (h) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this
Section, a breach of another confidentiality agreement to which the
Administrative Agent or such Lender is a party or any other legal or fiduciary
obligation of the Administrative Agent or such Lender or (y) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrower. 
For purposes of this Section, “Information” means all information
received from or on behalf of any Obligor or Subsidiary Guarantor relating to
any Obligor or any Subsidiary Guarantor or any of their respective businesses,
other than any such information that the Administrative Agent or any Lender
proves is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Obligor or any Subsidiary
Guarantor from a source which is not, to the knowledge of the recipient,
prohibited from disclosing such information by a confidentiality agreement  or other legal or fiduciary obligation to the
Obligors or Subsidiary Guarantors.  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 taken normal and reasonable precautions and exercised
due care to maintain the confidentiality of such Information.  In addition to other remedies, the Obligors
shall be entitled to specific performance and injunctive and other equitable
relief for breach of this Section 10.14.


 


Section 10.15       Electronic Communications.


 


(a)           Each Obligor hereby agrees that except to
the extent provided in clause (i) of the final sentence of Section 5.01,
it will provide to the Administrative Agent all information, 


 


63

















 


documents or other materials that it is
obligated to furnish to the Administrative Agent pursuant to this Agreement or
any other Loan Document, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other
information materials, but excluding any such communication that (i) relates
to a request for a new, or a conversion of an existing, borrowing or other
extension of credit (including any election of an interest rate or interest
period relating thereto), (ii) relates to the payment of any principal or
other amount due under this Agreement or any other Loan Document prior to the
scheduled date therefor, (iii) provides notice of any Default or Event of
Default, (iv) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any Borrowing hereunder
or (v) initiates or responds to legal process (all such non-excluded
information being referred to herein collectively as the “Communications”)
by transmitting the Communications in an electronic/soft medium (provided such Communications
contain any required signatures) in a format acceptable to the Administrative
Agent to oploanswebadmin@citigroup.com (or such other e-mail address designated
by the Administrative Agent from time to time).


 


(b)           Each party hereto agrees that the
Administrative Agent may make the Communications available to the Lenders by
posting the Communications on IntraLinks 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) (the “Platform”).  Nothing
in this Section 5.01 shall prejudice the right of the Administrative Agent
to make the Communications available to the Lenders in any other manner
specified in this Agreement.


 


(c)           Each Obligor hereby acknowledges that
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 Obligors or
their securities) (each, a “Public Lender”).  The Obligors hereby agree that (i) Communications
that are to be made available on the Platform 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, (ii) by
marking Communications “PUBLIC,” each Obligor shall be deemed to have
authorized the Administrative Agent and the Lenders to treat such
Communications as either publicly available information or not material
information (although it may be sensitive and proprietary) with respect to the
Obligors or their securities for purposes of United States Federal and state
securities laws, (iii) all Communications marked “PUBLIC” are permitted to
be made available through a portion of the Platform designated “Public Lender,”
and (iv) the Administrative Agent shall be entitled to treat any
Communications that are not marked “PUBLIC” as being suitable only for posting
on a portion of the Platform not designated “Public Lender.”


 


(d)           Each Lender agrees that e-mail notice to it
(at the address provided pursuant to the next sentence and deemed delivered as
provided in the next paragraph) specifying that Communications have been posted
to the Platform shall constitute effective delivery of such Communications to
such Lender for purposes of this Agreement. 
Each Lender agrees (i) to notify the Administrative Agent in
writing (including by electronic communication) from time to time to ensure
that the Administrative Agent has on record an effective e-mail address for
such Lender to which the foregoing notice may be sent by electronic
transmission and (ii) that the foregoing notice may be sent to such e-mail
address.


 


64

















 


(e)           Each party hereto agrees that any electronic
communication referred to in this Section 10.15 shall be deemed delivered
upon the posting of a record of such communication (properly addressed to such
party at the e-mail address provided to the Administrative Agent) as “sent” in
the e-mail system of the sending party or, in the case of any such
communication to the Administrative Agent, upon the posting of a record of such
communication as “received” in the e-mail system of the Administrative Agent; provided that if such
communication is not so received by any party during the normal business hours
of the Administrative Agent, such communication shall be deemed delivered at
the opening of business on the next Business Day for the Administrative Agent.


 


(f)            Each party hereto acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Communications and the Platform are provided “as is”
and “as available,” (iii) none of the Administrative Agent, its affiliates
nor any of their respective officers, directors, employees, agents, advisors or
representatives (collectively, the “Agent Parties”) warrants the
adequacy, accuracy or completeness of the Communications or the Platform, and
the Administrative Agent and its Related Parties expressly disclaims liability
for errors or omissions in any Communications or the Platform, and (iv) no
warranty of any kind, express, implied or statutory, including, without
limitation, 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 the Administrative Agent in connection with any
Communications or the Platform.


 


Section 10.16       USA PATRIOT Act Notice. 
Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Obligors 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
Obligors, which information includes the name and address of the Obligors and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Obligors in accordance with the Act.


 


[Remainder of page intentionally left blank]


 


65
















 


[Signature Page to Three-Year Senior Unsecured
Credit Agreement]


 


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


 


 


	
   

  	
  TYCO INTERNATIONAL FINANCE S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ ENRICA MACCARINI

  
	
   

  	
   

  	
  Name: Enrica Maccarini

  
	
   

  	
   

  	
  Title: Managing Director

  



 

















 


[Signature
Page to Three-Year Senior Unsecured Credit Agreement]


 


 


	
   

  	
  TYCO INTERNATIONAL LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ CHRISTOPHER J. COUGHLIN

  
	
   

  	
   

  	
  Name: Christopher J. Coughlin

  
	
   

  	
   

  	
  Title: EVP & CFO

  



 

















 


[Signature
Page to Three-Year Senior Unsecured Credit Agreement]


 


 


	
   

  	
  CITIBANK, N.A., as a Lender and as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ KEVIN A. EGE

  
	
   

  	
   

  	
  Name: Kevin A. Ege

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


[Signature
Page to Three-Year Senior Unsecured Credit Agreement]


 


 


	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ EDWIN B. COX, JR.

  
	
   

  	
   

  	
  Name: Edwin B. Cox, Jr.

  
	
   

  	
   

  	
  Title: Senior Vice President

  



 

















 


[Signature
Page to Three-Year Senior Unsecured Credit Agreement]


 


 


	
   

  	
  BARCLAYS BANK PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ NICHOLAS A. BELL

  
	
   

  	
   

  	
  Name: Nicholas A. Bell

  
	
   

  	
   

  	
  Title: Director

  



 

















 


[Signature
Page to Three-Year Senior Unsecured Credit Agreement]


 


 


	
   

  	
  BNP PARIBAS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ ANGELA B. ARNOLD

  
	
   

  	
   

  	
  Name: Angela B. Arnold

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ MELISSA BALLEY

  
	
   

  	
   

  	
  Name: Melissa Balley

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


[Signature
Page to Three-Year Senior Unsecured Credit Agreement]


 


 


	
   

  	
  DEUTSCHE BANK AG NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ MING K. CHU

  
	
   

  	
   

  	
  Name: Ming K. Chu

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ HEIDI SANDQUIST

  
	
   

  	
   

  	
  Name: Heidi Sandquist

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


[Signature
Page to Three-Year Senior Unsecured Credit Agreement]


 


 


	
   

  	
  GOLDMAN SACHS BANK USA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ MARK WALTON

  
	
   

  	
   

  	
  Name: Mark Walton

  
	
   

  	
   

  	
  Title: Authorized Signatory

  



 

















 


[Signature
Page to Three-Year Senior Unsecured Credit Agreement]


 


 


	
   

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ DANIEL TWENGE

  
	
   

  	
   

  	
  Name: Daniel Twenge

  
	
   

  	
   

  	
  Title: Authorized Signatory

  



 

















 


[Signature
Page to Three-Year Senior Unsecured Credit Agreement]


 


 


	
   

  	
  UBS LOAN FINANCE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ IRJA R. OTSA

  
	
   

  	
   

  	
  Name: Irja R. Otsa

  
	
   

  	
   

  	
  Title:  Associate Director, Banking Products

  
	
   

  	
  Services, US

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ RICHARD L. TAVROW

  
	
   

  	
   

  	
  Name:   Richard L. Tavrow

  
	
   

  	
   

  	
  Title:  Director, Banking Products Services, US

  



 

















 


[Signature
Page to Three-Year Senior Unsecured Credit Agreement]


 


 


	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ ANTHONY WHITE

  
	
   

  	
   

  	
  Name: Anthony White

  
	
   

  	
   

  	
  Title: Vice President

  



 
















 


[Signature
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  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ DANIEL J. LENCKOS

  
	
   

  	
   

  	
  Name: Daniel J. Lenckos

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


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  ING BANK N.V. DUBLIN BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ EMMA CONDON

  
	
   

  	
   

  	
  Name: Emma Condon

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ AIDAN NEILL

  
	
   

  	
   

  	
  Name: Aidan Neill

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


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  MIZUHO CORPORATE BANK, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ ROBERT GALLAGHER

  
	
   

  	
   

  	
  Name: Robert Gallagher

  
	
   

  	
   

  	
  Title: Authorized Signatory

  



 

















 


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  THE BANK OF NOVA SCOTIA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ TODD MELLER

  
	
   

  	
   

  	
  Name: Todd Meller

  
	
   

  	
   

  	
  Title: Managing Director

  



 

















 


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  SOCIETE GENERALE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ ANNE-MARIE DUMORTIER

  
	
   

  	
   

  	
  Name: Anne-Marie Dumortier

  
	
   

  	
   

  	
  Title: Director

  



 

















 


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  WESTPAC BANKING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ BRADLEY SCAMMELL

  
	
   

  	
   

  	
  Name: Bradley Scammell

  
	
   

  	
   

  	
  Title: Head of Corporate & Institutional

  
	
   

  	
  Banking, Americas

  



 

















 


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  AUSTRALIA AND NEW ZEALAND BANKING

  GROUP LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ JOHN W. WADE

  
	
   

  	
   

  	
  Name: John W. Wade

  
	
   

  	
   

  	
  Title: Deputy General Manager

  
	
   

  	
   

  	
  Head of Operations and Infrastructures

  



 

















 


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  BANCO BILBAO VIZCAYA ARGENTARIA,

  
	
   

  	
   

  	
  S.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ GUILHERME GOBBO

  
	
   

  	
   

  	
  Name: Guilherme Gobbo

  
	
   

  	
   

  	
  Title: Vice President, Global Corporate Banking

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ CRISTIAN AGUIRRE

  
	
   

  	
   

  	
  Name: Christian Aguirre

  
	
   

  	
   

  	
  Title: Assistant Vice President, International

  
	
   

  	
  Corporate Banking

  



 

















 


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  THE NORTHERN TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ THOMAS HASENAUER

  
	
   

  	
   

  	
  Name: Thomas Hasenauer

  
	
   

  	
   

  	
  Title: Vice President