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Exhibit
10.17
AMENDMENT NO. 2 TO SENIOR
BRIDGE LOAN AGREEMENT
(HEALTHCARE
BUSINESSES)
AMENDMENT NO. 2 TO SENIOR BRIDGE
LOAN AGREEMENT (Healthcare Businesses) (this “
Amendment ”), dated as of November 6,
2007, among COVIDIEN INTERNATIONAL FINANCE S.A., a Luxembourg
company (the “ Borrower ”), COVIDIEN
LTD., a Bermuda company (the “ Guarantor
”), each Person executing this Amendment as a Lender, and
CITIBANK, N.A., as Administrative Agent.
PRELIMINARY
STATEMENTS
(1) The Borrower, the
Guarantor, the Lenders and the Administrative Agent are parties to
the 364-Day Senior Bridge Loan Agreement, dated as of
April 25, 2007 (as amended, supplemented or otherwise modified
from time to time through the date of this amendment, the “
Bridge Loan Agreement ”).
(2) The parties desire to
amend the Bridge Loan Agreement to clarify certain provisions
relating to the ratings used to determine the interest rate margin
and facility fee payable under the terms of the existing Bridge
Loan Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained in
this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Defined Terms . Capitalized terms used but not defined in
this Amendment shall have the meaning set forth in the Bridge Loan
Agreement.
Section 1.02 Rules
of Construction . The rules of construction set forth in
Section 1.03 of the Bridge Loan Agreement shall apply to this
Amendment as if fully set forth herein.
ARTICLE II
AMENDMENTS TO BRIDGE LOAN
AGREEMENT
Section 2.01
Amendment to the Section 1.01: Defined Terms .
Section 1.01 of the Bridge Loan Agreement is hereby amended by
deleting the definitions for each of “Fitch Rating”,
“Moody’s Rating” and “S&P Rating”
and inserting the definitions set forth below for each of the
defined terms:
“ Fitch Rating
” means, at any time, the rating published by Fitch of the
Borrower’s Index Debt, or, if prior to the date that the
initial Index Debt ratings are available with respect to the
Borrower, the ratings of the senior, unsecured long-term
indebtedness for borrowed money of the Guarantor issued by
Fitch.
“ Moody’s
Rating ” means, at any time, the rating published by
Moody’s of the Borrower’s Index Debt, or, if prior to
the date that the initial Index Debt ratings are available with
respect to the Borrower, the ratings of the senior, unsecured
long-term indebtedness for borrowed money of the Guarantor issued
by Moody’s.
“ S&P Rating
” means, at any time, the rating published by S&P of the
Borrower’s Index Debt, or, if prior to the date that the
initial Index Debt ratings are available with respect to the
Borrower, the ratings of the senior, unsecured long-term
indebtedness for borrowed money of the Guarantor issued by
S&P.
Section 2.02
Amendment to Schedule 1.01; Pricing Grid . Schedule
1.01 of the Bridge Loan Agreement is hereby amended by deleting the
text following the pricing grid contained on such schedule and
inserting the text attached as Exhibit A hereto in lieu
thereof.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES
Section 3.01
Representations and Warranties . Each Obligor represents
and warrants to the Administrative Agent and each Lender that this
Amendment has been duly authorized, executed and delivered by each
Obligor and constitutes the legal, valid and binding obligation of
such Obligor enforceable against such Obligor in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally and subject to
general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
Section 3.02 No
Default . Each of the Obligors represents and warrants to
the Administrative Agent and each Lender that as of the date
hereof, and after giving effect to this Amendment, no Default has
occurred and is continuing.
ARTICLE IV
EFFECTIVENESS
Section 4.01
Conditions to Effectiveness . This Amendment shall be
deemed effective as of the date of the Spin Distributions (the
“ Amendment Effective Date ”) provided
that the following conditions precedent shall have been satisfied
on or as of the date hereof (unless waived by the Required
Lenders):
(a) The Administrative Agent
(or its counsel) shall have received this Amendment, duly executed
and delivered by the Borrower, the Guarantor, the Administrative
Agent and the Required Lenders.
(b) As of the date hereof,
and after giving effect to this Amendment, the representations and
warranties set forth in Section 3.01 of this Amendment are
true and correct in all material respects on and as of the date
hereof with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and
warranties were true and correct in all material respects on and as
of such earlier date.
(c) As of the date hereof,
and after giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing.
Section 4.02
References to Agreement . The Bridge Loan Agreement and
this Amendment shall be read, taken and construed as one and the
same instrument from and after the Amendment Effective Date. Any
references in the Bridge Loan Agreement to “this
Agreement”,
2
“hereunder”,
“herein” or words of like import, and each reference in
any other document executed in connection with the Bridge Loan
Agreement (including, without limitation, the Notes), to “the
Agreement”, “thereunder”, “therein”
or words of like import, shall, from and after the Amendment
Effective Date, mean and be a reference to the Bridge Loan
Agreement as amended hereby.
Section 4.03
Continued Effectiveness; Ratification of Loan Documents .
The Bridge Loan Agreement and the other Loan Documents, each as
modified by this Amendment, are and shall continue to be in full
force and effect and are hereby ratified and confirmed in all
respects.
ARTICLE V
MISCELLANEOUS
Section 5.01
Execution in Counterparts . This Amendment may be executed
in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page of this
Amendment by facsimile or any electronic means that reproduces an
image of the actual executed signature page shall be effective as
delivery of a manually executed counterpart of this
Amendment.
Section 5.02 Fees,
Costs and Expenses . The Borrower agrees to pay all
reasonable out of pocket expenses incurred by the Administrative
Agent, including the
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