PARTIES HERETO ON DIFFERENT COUNTERPARTS),
EACH OF WHICH SHALL CONSTITUTE AN ORIGINAL, BUT ALL OF WHICH WHEN TAKEN TOGETHER
SHALL CONSTITUTE A SINGLE CONTRACT.
9
DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE PAGE OF THIS AMENDMENT BY
FACSIMILE OR ANY ELECTRONIC MEANS THAT REPRODUCES AN IMAGE OF THE ACTUAL
EXECUTED SIGNATURE PAGE SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED
COUNTERPART OF THIS AMENDMENT.
SECTION 5.02.
FEES, COSTS AND EXPENSES.
THE BORROWER AGREES TO PAY ALL
REASONABLE OUT OF POCKET EXPENSES INCURRED BY THE ADMINISTRATIVE AGENT,
INCLUDING THE REASONABLE FEES, CHARGES AND DISBURSEMENTS OF COUNSEL FOR THE
ADMINISTRATIVE AGENT, IN CONNECTION WITH THE PREPARATION, NEGOTIATION,
EXECUTION, DELIVERY AND ADMINISTRATION OF THIS AMENDMENT AND THE OTHER LOAN
DOCUMENTS OR ANY AMENDMENTS, MODIFICATIONS OR WAIVERS OF THE PROVISIONS HEREOF
AND THEREOF (WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
SHALL BE CONSUMMATED).
SECTION 5.03.
LOAN DOCUMENT.
THIS AMENDMENT SHALL BE DEEMED TO BE A LOAN
DOCUMENT.
SECTION 5.04.
BINDING EFFECT.
UPON THE AMENDMENT EFFECTIVE DATE, THIS
AMENDMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE BORROWER, THE
LENDERS AND THE ADMINISTRATIVE AGENT AND, IN EACH CASE, THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
SECTION 5.05.
GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 5.06.
CERTAIN AMENDMENTS TO EXISTING TYCO REVOLVER.
REFERENCE IS
MADE TO THAT CERTAIN FIVE-YEAR SENIOR CREDIT AGREEMENT, DATED AS OF APRIL 25,
2007, AS AMENDED OR OTHERWISE MODIFIED (THE "EXISTING TYCO REVOLVER"), AMONG
TYCO INTERNATIONAL FINANCE S.A., AS BORROWER, TYCO INTERNATIONAL LTD., AS
GUARANTOR, THE LENDERS FROM TIME TO TIME PARTY THERETO, AND CITIBANK, N.A., AS
ADMINISTRATIVE AGENT.
EACH OF THE LENDERS PARTY TO THIS AMENDMENT THAT IS ALSO
A LENDER UNDER THE EXISTING TYCO REVOLVER COLLECTIVELY CONSTITUTE THE REQUIRED
LENDERS UNDER AND AS DEFINED IN THE EXISTING TYCO REVOLVER (THE "REVOLVER
REQUIRED LENDERS").
BY EXECUTING THIS AMENDMENT, THE BORROWER, THE GUARANTOR,
AND EACH OF THE REVOLVER REQUIRED LENDERS HEREBY AGREES THAT IT WILL (I)
CONSENT, AND CAUSE ITS RESPECTIVE ASSIGNEES, IF ANY, TO CONSENT, TO AN AMENDMENT
TO THE EXISTING TYCO REVOLVER TO AMEND AND RESTATE THE FOLLOWING DEFINED TERMS
IN SECTION 1.01 OF THE EXISTING TYCO REVOLVER TO READ IN THEIR RESPECTIVE
ENTIRETY AS FOLLOWS AND (II) CAUSE (AND CAUSE ITS RESPECTIVE ASSIGNEES TO CAUSE)
SUCH AMENDMENT TO BECOME EFFECTIVE NO LATER THAN THE EARLIER OF (X) THE
COMPLETION OF THE PRIMARY SYNDICATION OF THE TRANCHE C COMMITMENTS (AS DEFINED
IN THE BRIDGE LOAN AGREEMENT AFTER GIVING EFFECT TO THIS AMENDMENT)) AND (Y)
DECEMBER 31, 2007 (THE "APPLICABLE DATE"):
"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, BUT, FOR THE
PURPOSES OF ARTICLE III HEREOF, IN ANY EVENT