TABLE OF CONTENTS

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ARTICLE I	Definitions				1
Section 1.01			Defined Terms		1
Section 1.02			Classification of Loans and Borrowings		19
Section 1.03			Terms Generally		19
Section 1.04			Accounting Terms; GAAP		20
ARTICLE II	The Credits				20
Section 2.01			Commitments		20
Section 2.02			Loans and Borrowings		20
Section 2.03			Requests for Borrowings		21
Section 2.04			[Intentionally omitted]		22
Section 2.05			Funding of Borrowings		22
Section 2.06			Interest Elections		23
Section 2.07			Termination and Reduction of Commitments		24
Section 2.08			Repayment of Loans; Evidence of Debt		25
Section 2.09			Prepayment of Loans; Mandatory Reduction of Commitments		26
Section 2.10			Fees		27
Section 2.11			Interest		27
Section 2.12			Calculation of Interest and Fees		28
Section 2.13			Payments Generally; Pro Rata Treatment; Sharing of Set-offs		28
ARTICLE III	Representations and Warranties				30
Section 3.01			Organization; Powers		30
Section 3.02			Authorization; Enforceability		30
Section 3.03			Governmental Approvals; No Conflicts		30
Section 3.04			Financial Condition; No Material Adverse Change		30
Section 3.05			Litigation and Environmental Matters		31
Section 3.06			Investment Company Status		32
Section 3.07			Taxes		32
Section 3.08			ERISA		32
Section 3.09			Disclosure		32
Section 3.10			Subsidiaries		33
Section 3.11			Margin Regulations		33
ARTICLE IV	Conditions				33
Section 4.01			Effective Date		33
Section 4.02			Each Borrowing		34
ARTICLE V	Covenants				35
Section 5.01			Financial Statements and Other Information		35
Section 5.02			Existence; Conduct of Business		37
Section 5.03			Maintenance of Properties; Insurance		37

 

 

 

Section 5.04			Books and Records; Inspection Rights		37
Section 5.05			Compliance with Laws		38
Section 5.06			Use of Proceeds		38
Section 5.07			Liens		38
Section 5.08			Fundamental Changes		40
Section 5.09			Financial Covenant		41
Section 5.10			Limitation on Restrictions on Subsidiary Dividends and Other Distributions		42
Section 5.11			Transactions with Affiliates		43
Section 5.12			Subsidiary Guarantors		44
Section 5.13			Subsidiary Debt		45
ARTICLE VI	Events of Default				45
ARTICLE VII	The Administrative Agent				48
ARTICLE VIII	Guarantee				51
Section 8.01			The Guarantee		51
Section 8.02			Guarantee Unconditional		51
Section 8.03			Discharge Only upon Payment in Full; Reimbursement in Certain Circumstances		52
Section 8.04			Waiver by the Guarantor		52
Section 8.05			Subrogation		52
Section 8.06			Stay of Acceleration		52
ARTICLE IX	Yield Protection, Illegality and Taxes				52
Section 9.01			Alternate Rate of Interest		52
Section 9.02			Illegality		53
Section 9.03			Increased Costs		53
Section 9.04			Break Funding Payments		54
Section 9.05			Taxes		54
Section 9.06			Matters Applicable to all Requests for Compensation		56
Section 9.07			Mitigation Obligations		56
ARTICLE X	Miscellaneous				56
Section 10.01			Notices		56
Section 10.02			Waivers; Amendments		58
Section 10.03			Expenses; Indemnity; Damage Waiver		59
Section 10.04			Successors and Assigns		60
Section 10.05			Survival		65
Section 10.06			Counterparts; Integration; Effectiveness		65
Section 10.07			Severability		66
Section 10.08			Right of Setoff		66
Section 10.09			Governing Law; Jurisdiction; Consent to Service of Process		66
Section 10.10			Waiver of Jury Trial		67
Section 10.11			Waiver of Immunities		67

 

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Section 10.12		Judgment Currency		68
Section 10.13		Headings		68
Section 10.14		Confidentiality		68
Section 10.15		Electronic Communications		69
Section 10.16		USA PATRIOT Act Notice		71

SCHEDULES:

Schedule A - Existing Indenture Debt
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 Borrower Assumption Agreement
Exhibit E - Form of Subsidiary Guaranty
Exhibit F - Form of Borrowing Request
Exhibit G - Form of Guarantor Assumption Agreement
Exhibit H-1 - Form of opinion of special Luxembourg counsel (Borrower Assumption
                      Agreement)
Exhibit H-2 - Form of opinion of special New York counsel (Borrower Assumption Agreement)
Exhibit I-1 - Form of opinion of special Bermuda counsel (Guarantor Assumption Agreement)
Exhibit I-2 - Form of opinion of special New York counsel (Guarantor Assumption Agreement)

 

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364-DAY SENIOR BRIDGE LOAN AGREEMENT (Electronics Businesses) dated as of April 25, 2007 (the “ Closing Date ”), among TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the “ Initial Borrower ”), TYCO INTERNATIONAL LTD., a Bermuda company (the “ Initial Guarantor ”), TYCO ELECTRONICS GROUP S.A., a Luxembourg company (the “ E Borrower ”), TYCO ELECTRONICS LTD., a Bermuda company (the “ E Guarantor ”), the LENDERS party hereto, and BANK OF AMERICA, 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 in accordance with GAAP.

“ Administrative Agent ” means Bank of America, 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.

“ Allocated Existing Credit Agreement Debt ” means the portion of the Debt under the Existing Tyco Credit Agreements to be allocated to the E Borrower in connection with the Separation Transactions, and which may be repaid with the proceeds of the Loans.

 

 

“ Allocated Existing Indenture Debt ” means the portion of the Existing Indenture Debt to be allocated to the E Borrower in connection with the Separation Transactions, and which may be repaid with the proceeds of the Loans.

“ 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 ½ of 1%.  Any change in the Alternate Base Rate due to a change in the Prime 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.

“ Applicable Margin ” means, with respect to any Eurodollar Loan, either (i) at any time during which less than 50% of the 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 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 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 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.

“ Availability Period ” means the period from and including the Effective Date to but excluding the earliest of (a) the Maturity Date, (b) the date of the consummation of the Electronics Spin Distribution and (c) the date of any earlier termination of the Commitments.

“ Bank of America ” means Bank of America, N.A.

“ Base Rate ” means the rate of interest per annum publicly announced from time to time by Bank of America as its base rate or prime rate in effect at its principal office in New York City.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such

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announced rate.  Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

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

“ Borrower ” means, until the Borrower Transition Time, the Initial Borrower, and from and after the Borrower Transition Time, the E Borrower.

“ Borrower Assumption Agreement ” means an assignment and assumption agreement entered into between the Initial Borrower and the E Borrower substantially in the form of Exhibit D.

“ Borrower Assumption Opinions ” means a written opinion (addressed to the Administrative Agent and the Lenders and dated the date of the Borrower Assumption Agreement) of (i) Allen & Overy, special Luxembourg counsel of the E Borrower, substantially in the form attached as Exhibit H-1 and (ii) Gibson, Dunn & Crutcher LLP, special New York counsel of the E Borrower, substantially in the form attached as Exhibit H-2, in each case with such changes to such forms as may be approved by the Administrative Agent.

“ Borrower Transition Time ” means the time of the consummation of the TIGSA Separation ( provided that the conditions set forth in Section 5.08(b) shall have been satisfied).

“ 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.

“ 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.

“ Closing Date ” means the date of this Agreement.

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

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“ Commitment ” means, with respect to each Lender, the commitment of such Lender to make Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.07, and (b) 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 $2,800,000,000.

“ 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 nonrecurring or non-cash charges (including charges incurred with respect to 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.  For purposes of calculating Consolidated Net Income (and Consolidated EBITDA) for any period (or portion thereof) ending on or prior to the Electronics Spin Distribution, Consolidated Net Income (and Consolidated EBITDA) shall be determined

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based on the combined financial statements as described in Section 3.04(a)(ii) and Section 5.01(b)(ii).

“ 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 , further that prior to the Electronics Spin Distribution, Consolidated Total Debt shall only include Debt that would be reflected on the combined balance sheet as described in Section 3.04(a)(ii) and Section 5.01(b)(ii); 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.

“ Credit Agreement ” means the Five-Year Senior Credit Agreement (Electronics Businesses) dated as of the date of this Agreement among the E Borrower, the Initial Guarantor, the E Guarantor, the lenders party thereto, and Bank of America, N.A., as Administrative Agent.

“ Credit Agreement (Healthcare) ” means the Five-Year Senior Credit Agreement (Healthcare Businesses) dated as of the date of this Agreement among the H Borrower, the Initial Guarantor, the H Guarantor, the lenders party thereto, and Citibank, N.A., as Administrative Agent.

“ Credit Agreement (Topaz) ” means the Five-Year Senior Credit Agreement (Fire & Safety and Engineered Products Businesses) dated as of the date of this Agreement among the T Borrower, the Initial Guarantor, the lenders party thereto, and Citibank, N.A., as Administrative Agent.

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

“ Cross Guarantees ” means the Guarantees by the Guarantor or its Subsidiaries of obligations of the T Borrower or the H Borrower or their respective subsidiaries that are listed on Schedule 5.09, to the extent that the direct obligor with respect to the obligations covered by

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such Guarantee guarantees or is otherwise obligated to the payments of such guaranteed obligations 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 Electronics Company.

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

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

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

“ E SARL ” means Emerald Group S.á r.l., a Luxembourg company.

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“ E Subsidiary ” means, until the Borrower Transition Time, E SARL and any Subsidiary that is a subsidiary of E SARL, and from and after the Borrower Transition Time, any subsidiary of the E Borrower.

“ Effective Date ” means the date on which the conditions specified in Section 4.01, and the conditions specified in Section 4.02 with respect to the initial Loans to be made under this Agreement,  are satisfied or waived.

“ Electronics Registration Statement ” has the meaning set forth in Section 3.04(a).

“ Electronics Spin Distribution ” has the meaning set forth in the definition of “Separation Transactions”.

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

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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 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 of Governors of the Federal Reserve System for determining such Lender’s reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to “Eurocurrency liabilities”, as in effect from time to time (“ FRB Regulation D ”).

“ 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.

“ 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 (other than Taxes withheld at the source) 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).

“ Existing Indenture Covered Default ” means any default or event of default under any of the indentures or notes evidencing the Existing Indenture Debt (i) that results solely from the Separation Transactions and (ii) for which borrowings would be available (and at the time continue to be available) under this Agreement or the Other Bridge Loan Agreements to pay in full (a) such Existing Indenture Debt if such Existing Indenture Debt were accelerated as a result of such default and (b) any other Existing Indenture Debt which could be accelerated as a result of such default.

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“ Existing Indenture Debt ” means the Debt of the Initial Borrower, the Initial Guarantor and Subsidiaries of the Initial Borrower, which Debt is outstanding on the date of this Agreement and is more particularly described on Schedule A, which, among other things, sets forth the aggregate amount of each series or tranche of such Debt.

“ Existing Tyco Credit Agreements ” means each of (i) the $1,500,000,000 Three-Year Credit Agreement dated as of December 22, 2003, as amended, among the Initial Borrower, the T Guarantor, Bank of America, N.A., as paying agent, and the other lenders party thereto, and (ii) the $1,000,000,000 Five-Year Credit Agreement dated as of December 16, 2004, as amended, among the Initial Borrower, the T Guarantor, Bank of America, N.A., as paying agent, and the other lenders party thereto.

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

“ 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 December 20, 2006 between the Initial Borrower (or, on and after assignment of such letter in connection with the TIGSA Separation, the E Borrower) and the Administrative Agent and (ii) the letter dated December 20, 2006 between the Initial Borrower (or, on and after assignment of such letter in connection with the TIGSA Separation, the E Borrower) and the Global Coordinators.

“ 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.

“ Form-10s ” means (i) the Form 10 filed by the H Guarantor with the SEC on January 18, 2007, as amended by the amendment thereto filed with the SEC on April 20, 2007 and (ii) the Form 10 filed by the E Guarantor with the SEC on January 18, 2007, as amended by the amendment thereto filed with the SEC on April 20, 2007.

“ Funded Debt ” means any Debt described in clause (a) or (b) of the definition of Debt (for the avoidance of doubt not including items carved out of the definition of Debt pursuant to the proviso to such definition).

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

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“ Global Coordinators ” means Citigroup Global Markets Inc. and Banc of America Securities LLC in their respective capacities as global coordinators.

“ 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 ” means, until the Guarantor Transition Time, the Initial Guarantor, and from and after the Guarantor Transition Time, the E Guarantor.

“ Guarantor Assumption Agreement ” means an assignment and assumption agreement entered into between the Initial Guarantor and the E Guarantor substantially in the form of Exhibit G.

“ Guarantor Assumption Opinions ” means a written opinion (addressed to the Administrative Agent and the Lenders and dated the date of the Guarantor Assumption Agreement) of (i) Appleby Hunter Bailhache, special Bermudian counsel of the E Guarantor, substantially in the form attached as Exhibit I-1 and (ii) Gibson, Dunn & Crutcher LLP, special New York counsel of the E Guarantor, substantially in the form attached as Exhibit I-2, in each case with such changes to such forms as may be approved by the Administrative Agent.

“ Guarantor Transition Time ” means the time of the consummation of the Electronics Spin Distribution ( provided that the conditions set forth in Section 5.08(c) shall have been satisfied).

“ H Borrower ” means Covidien International Finance S.A., a Luxembourg company.

 

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“ H Guarantor ” means Covidien Ltd., a Bermuda company.

“ 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.

“ Healthcare Spin Distribution ” has the meaning set forth in the definition of “Separation Transactions”.

“ 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 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.

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

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

“ 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.

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“ 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.

“ 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.

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“ Loan Documents ” means this Agreement, each Note (if any), the Borrower Assumption Agreement, the Guarantor Assumption Agreement, 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 $50,000,000.

“ Maturity Date ” means the earliest to occur of (i) April 23, 2008, (ii) the date of any voluntary termination or reduction of commitments under (x) the Credit Agreement or (y) any of the Other Credit Agreements, if (in the case of this clause (y)) such date is prior to the Guarantor Transition Time ( provided that the Credit Agreement (Healthcare) shall cease to be considered in this clause (ii)(y) after the Healthcare Spin Distribution), or (iii) the date of any voluntary prepayment of any non-revolving Debt of the Guarantor or any Subsidiary (other than the Existing Indenture Debt) in an aggregate outstanding principal amount exceeding $100,000,000; provided that if such day is not a Business Day, the Maturity Date shall be the next succeeding Business Day (excluding any day on which banks are not open for dealings in dollar deposits in the London interbank market); and provided further that any transaction solely among the Guarantor and its Subsidiaries or solely among Subsidiaries shall be disregarded for purposes of clause (iii) above.

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

“ 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.

“ Net Cash Proceeds ” means, with respect to any Reduction Event, (a) the cash proceeds received in respect thereof (including any cash received in respect of any non-cash proceeds, but only when and as received), in each case net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid or payable by the Guarantor and its Subsidiaries to third parties (other than Affiliates) in connection with such Reduction Event, and (ii) the amount of all taxes paid (or reasonably estimated to be payable) by the Guarantor and its Subsidiaries that are directly attributable to such Reduction Event (as determined reasonably and in good faith by the Guarantor); provided that with respect to any Reduction Event under clause (b) of the definition

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of “Reduction Event” occurring as a result of the incurrence of Funded Debt by the Initial Guarantor prior to the consummation of the Electronics Spin Distribution or the Initial Borrower prior to the consummation of the TIGSA Separation, the “Net Cash Proceeds” thereof shall be deemed to be an amount equal to the net amount described above multiplied by a fraction, the numerator of which is the aggregate Commitments hereunder (whether used or unused) and the denominator of which is the sum of the aggregate Commitments hereunder (whether used or unused) and the aggregate “Commitments” under each of the Other Bridge Loan Agreements (whether used or unused).

“ 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 Bridge Loan Agreements ” means (a) the 364-Day Senior Bridge Loan Agreement (Healthcare Businesses) dated as of the date of this Agreement among the Initial Borrower, the H Borrower, the Initial Guarantor, the H Guarantor, the lenders party thereto, and Citibank, N.A., as Administrative Agent and (b) the 364-Day Senior Bridge Loan Agreement (Fire & Safety and Engineered Products Businesses) dated as of the date of this Agreement among the Initial Borrower, the T Borrower, the Initial Guarantor, the lenders party thereto, and Citibank, N.A., as Administrative Agent.

“ Other Credit Agreements ” means the Credit Agreement (Healthcare) and the Credit Agreement (Topaz).

“ 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.

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“ 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 $250,000,000, including, without limitation, any revolving purchase(s) of such assets where the maximum aggregate uncollected purchase price (exclusive of any deferred purchase price) therefor does not exceed $250,000,000.

“ 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.

“ Reduction Event ” means any of the following:

(a)           except as issued pursuant to the Separation Transactions, any issuance by the Guarantor, the Borrower or any E Subsidiary on or after the date of this Agreement of any equity securities (including equity-linked or hybrid securities); or

(b)           any incurrence by the Guarantor, the Borrower or any E Subsidiary on or after the date of this Agreement of any Funded Debt, including without limitation pursuant to a public offering, private placement or a syndicated bank financing, except

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(A)          Debt incurred under this Agreement and the Other Bridge Loan Agreements or assigned to the E Borrower pursuant to the Separation Transactions;

(B)           so long as the proceeds of any of the following are not used to Refinance or repay any portion of the Allocated Existing Indenture Debt, Debt incurred under (x) the Credit Agreement at any time and (y) the Other Credit Agreements, if (in the case of this clause (y)) such incurrence occurs before the Guarantor Transition Time ( provided that the Credit Agreement (Healthcare) shall cease to be considered in this clause (B)(y) after the Healthcare Spin Distribution), or Refinancings of any of the foregoing;

(C)           Debt incurred in the ordinary course of business under bilateral lines of credit available to the Guarantor, the Borrower or any E Subsidiary on the Effective Date, or Refinancings thereof, or otherwise incurred in the ordinary course of business;

(D)          commercial paper issued in the ordinary course of business;

(E)           Debt, in the case of this clause (E) up to an aggregate principal amount of $200,000,000, incurred to finance acquisitions by the E Guarantor, the E Borrower or any E Subsidiary of all or substantially all the assets of a Person, a division or line of business of a Person, or the capital stock, partnership interests or limited liability company interests of a Person, or Refinancings of any of the foregoing, so long as (x) such Refinancing does not result in the amount of Debt described in this clause (E) exceeding an aggregate principal amount of $200,000,000 (plus an additional amount to cover any accrued interest on the Debt being Refinanced and any prepayment penalties or premiums and customary fees and expenses incurred in connection with such Refinancing) and (y) the Borrower is the obligor under such Refinanced Debt; and

(F)           Refinancings of other Debt outstanding on the Effective Date (other than Refinancings of any portion of the Allocated Existing Indenture Debt, including issuances of Funded Debt for which the proceeds are held for the purpose of Refinancing Allocated Existing Indenture Debt).

“ 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

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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.

“ Repurchase Documentation ” means the offering circulars for the tender offers and consent solicitations circulars commenced prior to the Effective Date for the repurchase of Allocated Existing Indenture Debt and, to the extent not so repurchased, the modification of the documentation evidencing Allocated Existing Indenture Debt.

“ 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.

“ 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.

“ Separation Pro Formas ” has the meaning assigned to such term in Section 3.04(a).

“ Separation Transactions ” means the series of transactions pursuant to which the assets, liabilities and businesses owned, directly or indirectly, by the Initial Guarantor and the Initial Borrower are being allocated among the T Guarantor and its Subsidiaries (including the T Borrower), the E Guarantor and its Subsidiaries (including the E Borrower) and the H Guarantor and its Subsidiaries (including the H Borrower).  The steps of the Separation Transactions will include, among others, (i) the contribution of the assets, liabilities and businesses of the Initial Borrower to the H Borrower (in the case of the healthcare businesses of the Initial Borrower and assets and liabilities relating thereto), the E Borrower (in the case of the electronics businesses of the Initial Borrower and assets and liabilities relating thereto) and the T Borrower (in the case of the fire & security and engineered products businesses of the Initial Borrower and assets and liabilities relating thereto) (such transactions, the “ TIGSA Separation ”), and the liquidation of the Initial Borrower and liquidating distribution in connection therewith of the shares of the H Guarantor, the E Guarantor and the T Borrower to the Initial Guarantor; and (ii) after the TIGSA Separation, the distributions by the Initial Guarantor to its shareholders of the shares of (x) the H Guarantor (the “ Healthcare Spin Distribution ”) and the E Guarantor (the “ Electronics Spin Distribution ”; and together with the Healthcare Spin Distribution, the “ Spin Distributions ”), with the Initial Guarantor to remain the direct parent of the T Borrower.

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“ 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).

“ Special Repayment ” means a redemption or other repayment of Allocated Existing Indenture Debt other than pursuant to the closing of a tender offer.

“ Spin Distributions ” has the meaning set forth in the definition of “Separation Transactions”.

“ Spin-off Agreements ” means (a) the Separation and Distribution Agreement to be entered into among the T Guarantor, the H Guarantor and the E Guarantor and (b) the Tax Sharing Agreement to be entered into among the T Guarantor, the H Guarantor and the E Guarantor, of which final forms shall be publicly filed with the SEC.

“ 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.

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“ 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 E, 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.

“ T Borrower ” means Tyco International Finance S.A., a Luxembourg company.

“ T Guarantor ” means the Initial Guarantor.

“ 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 Separation ” has the meaning set forth in the definition of “Separation Transactions”.

“ 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.

“ 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 ”

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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 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 (a) such Lender’s Credit Exposure exceeding such Lender’s Commitment or (b) the total Credit Exposures exceeding the total Commitments.  The Commitments are not revolving in nature and amounts repaid or prepaid may not be reborrowed.

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 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.

 

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(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 Lender at its option may make any Eurodollar Loan by causing any domestic or foreign 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 the form attached as Exhibit F, 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.  No more than a total of five Borrowing Requests may be made by the Borrower during the Availability Period, with each telephonic Borrowing Request specifying the information contained in clauses (i), (ii), (iv) and (v) below and with each written Borrowing Request specifying the information contained in clauses (i) through (vi) below, in each case, 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)        a list of the Allocated Existing Indenture Debt and/or Allocated Existing Credit Agreement Debt being repaid or redeemed, or with respect to which a consent fee is being paid, in each case, with the proceeds of such Borrowing (either by direct disbursement or advance deposit with the trustee, paying agent or fiscal agent for such Debt), setting forth (x) a description of each series or tranche of Allocated Existing Indenture Debt and/or Allocated Existing Credit Agreement Debt then being repaid or redeemed or irrevocably called for redemption, or with respect to which a consent fee is then being paid, (y) a reasonably detailed description of the amounts payable (including premiums, if any, consent fees and other related fees, costs and expenses, including

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professional fees) in connection with such series or tranche of such Allocated Existing Indenture Debt and/or Allocated Existing Credit Agreement Debt and (z) the Person to which each such payment shall be made;

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

(v)        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

(vi)       the location and number of the account or accounts to which funds are to be disbursed, which shall comply with the requirements of Section 2.04 and/or 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 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

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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 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,

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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

(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)           The unused Commitments shall automatically terminate at the end of the Availability Period.

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(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 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.

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

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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; Mandatory Reduction of Commitments.

(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; provided that each such prepayment shall be in an amount that is an integral multiple of $1,000,000 and not less than $10,000,000.

(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 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.

(c)           In the event that at any time, or from time to time, on or after the date of this Agreement, the Guarantor, the Borrower or any E Subsidiary shall receive any Net Cash Proceeds of any Reduction Event, then such Net Cash Proceeds shall be automatically applied first to reduce the unused Commitments (but not below zero) by an amount equal to the largest multiple of $1,000,000 which does not exceed the amount of such Net Cash Proceeds.  The reductions in the Commitments required by this subsection (c) shall be effective on the date of receipt by the Guarantor, the Borrower or any E Subsidiary of such Net Cash Proceeds.

(d)           In the event that at any time, or from time to time, on or after the Effective Date, the Guarantor, the Borrower or any E Subsidiary shall receive any Net Cash Proceeds of any Reduction Event (other than a Reduction Event which constitutes a refinancing of Existing Indenture Debt), after application of such Net Cash Proceeds pursuant to subsection (c) of this Section 2.09, the Loans shall be prepaid in an aggregate principal amount equal to the largest multiple of $1,000,000 which does not exceed the amount of such Net Cash Proceeds, less the amount of any reduction in the Commitments pursuant to subsection (c) of this Section 2.09 on account of such receipt.  Each such prepayment shall be made together with accrued interest on

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the amount prepaid and shall be made not later than the third Business Day following the date of such receipt.

(e)           The Guarantor or the Borrower shall notify the Administrative Agent not later than the date of receipt by the Guarantor, the Borrower or any E Subsidiary of the Net Cash Proceeds of a Reduction Event, specifying the date and amount thereof.  The Administrative Agent shall promptly notify each Lender of the contents of each such notice received by it.

Section 2.10         Fees.

(a)           The Borrower agrees to pay to the Administrative Agent for the account of each Lender a facility fee, which shall accrue on the daily amount of the then applicable Commitment of such Lender (whether used or unused) during the period from and including the date that is 90 days following the Closing Date to but excluding the Maturity Date, at the rate per annum set forth on the Pricing Grid opposite the reference to the applicable Index Debt Rating under the heading “Applicable Facility Fee Rate” (the “ Facility Fee ”); provided that, if such Lender continues to have any Credit Exposure after the Maturity Date, then such Facility Fee shall continue to accrue on the daily amount of such Lender’s Credit Exposure from and including the Maturity Date to but excluding the date on which such Lender ceases to have any Credit Exposure.  Facility 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 day, commencing on the first such date to occur after the date that is 90 days following the Closing Date; provided that all such fees shall be payable on the Maturity Date and any such fees accruing after the Maturity Date shall be payable on demand.

(b)           The Borrower agrees to pay to the Administrative Agent and the Global Coordinators, 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 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.

(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

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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 or 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 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

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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 mad