AMENDMENT NO. 2 TO FIVE-YEAR SENIOR CREDIT AGREEMENT

Exhibit 10.1

AMENDMENT NO. 2 TO FIVE-YEAR SENIOR CREDIT AGREEMENT

AMENDMENT NO. 2 TO FIVE-YEAR SENIOR CREDIT AGREEMENT (this “ Amendment ”), dated as of March 27, 2009, among COVIDIEN INTERNATIONAL FINANCE S.A., a Luxembourg company (the “ Borrower ”), COVIDIEN LTD., a Bermuda company (“ Covidien Ltd .” and together with the Borrower, the “ Obligors ”, and each an “ Obligor ”), the Lenders party hereto, and CITIBANK, N.A., as Administrative Agent.

PRELIMINARY STATEMENTS

(1) The Borrower, Covidien Ltd. and the Lenders are party to the Five-Year Senior Credit Agreement (Healthcare Businesses) dated as of April 25, 2007, as amended by Amendment No. 1 to Five-Year Senior Credit Agreement (Healthcare Businesses) dated as of November 6, 2007 (the “ Original Credit Agreement ”).

(2) Covidien Ltd. intends to consummate a series of transactions which will result in the common shareholders of Covidien Ltd. becoming the ordinary shareholders of Covidien PLC, an Irish company (“ Holdco ”) and Covidien Ltd. becoming a Wholly-Owned Consolidated Subsidiary of Holdco. Such transactions are more particularly described in Covidien Ltd.’s Form Pre 14 A filed February 6, 2009 (the “ Irish Transaction ”).

(3) In connection with the Irish Transaction, the Borrower and Covidien Ltd. have requested that the Lenders agree to certain amendments to the Original Credit Agreement, including the addition of Holdco as a guarantor.

(4) Such amendments require the consent of all Lenders.

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 Original Credit Agreement.

Section 1.02 Rules of Construction . The rules of construction set forth in Section 1.03 of the Original Credit Agreement shall apply to this Amendment as if fully set forth herein.

ARTICLE II

AMENDMENTS TO CREDIT AGREEMENT

Effective on the Amendment Effective Date (as defined below), the Original Credit Agreement, including the Exhibits and Schedules attached thereto, shall hereby be amended and restated so that such Original Credit Agreement and Exhibits and Schedules, as so amended, shall read in its entirety as attached hereto as Exhibit A (as so amended, the “ Amended Credit Agreement ”). Until the Amendment Effective Date (as defined below), the Original Credit Agreement shall continue in full force and effect and thereafter the Amended Credit Agreement shall continue in full force and effect. All Lenders hereby consent to the execution and delivery of the Amended Credit Agreement by the Administrative Agent on behalf of the Lenders on the Amendment Effective Date.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.01 Authorization; Enforceability . 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.

Section 3.03 Representations and Warranties . Each Obligor represents and warrants to the Administrative Agent and each Lender that all representations and warranties set forth in the Original Credit Agreement are true and correct in all material respects with the same effect as though such representations and warranties have been made on and as of the date hereof, except to the extent that any such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date.

ARTICLE IV

EFFECTIVENESS

Section 4.01 Conditions to Closing . This Amendment shall not become binding on the parties until the date on which the Administrative Agent (or its counsel) shall have received from each Obligor, the Administrative Agent and all Lenders either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.

Section 4.02 Conditions to Effectiveness . The Amended Credit Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.02 of the Original Credit Agreement) (the “ Amendment Effective Date ”):

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

 

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

(c) The Administrative Agent shall have received on or before the Amendment Effective Date certified copies of the charter, by-laws and other constitutive or other documents of each Obligor and Holdco and of resolutions of the Board of Directors of each Obligor and Holdco authorizing the Transactions, together with incumbency certificates or analogous documents in any other jurisdiction dated the Amendment Effective Date evidencing the identity, authority and capacity of each Person authorized to execute and deliver this Amendment, the Amended Credit Agreement, the other Loan Documents and any other documents to be delivered by such Obligor and Holdco pursuant hereto, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.

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

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

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

(g) The Borrower shall have paid all fees required to be paid by it pursuant to the Fee Letters (as defined in the Amended Credit Agreement) and, unless waived by the Administrative Agent, the Borrower shall have paid all legal fees and expenses of the Administrative Agent required to be paid pursuant to the terms of this Amendment and to the extent invoiced and received by the Borrower prior to date hereof.

(h) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of (i) the general counsel of Covidien Ltd. in substantially the form attached as Exhibit C-1 of the Amended Credit Agreement, (ii) the general counsel of Covidien plc in substantially the form attached as Exhibit C-2 of the Amended Credit Agreement, (iii) Allen & Overy, special Luxembourg counsel of the Borrower in substantially the form attached as Exhibit C-3 of the Amended Credit Agreement, (iv) Appleby, special Bermudian counsel of Covidien Ltd., in substantially the form attached as Exhibit C-4 of the Amended Credit Agreement, (v) Gibson, Dunn & Crutcher LLP, special New York counsel of the Obligors in substantially the form attached as Exhibit C-5 and (vi) Arthur Cox, special Irish counsel of Holdco in substantially the form attached as Exhibit C-6 of the Amended Credit Agreement.

(i) The Administrative Agent shall have received evidence reasonably satisfactory to it that the Irish Transaction shall have been consummated or is being consummated contemporaneously with the effectiveness hereof on the Amendment Effective Date.

 

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

Section 4.03 References to Agreement . The Amended Credit 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 Original Credit Agreement to “this Agreement”, “hereunder”, “herein” or words of like import, and each reference in any other document executed in connection with the Original Credit 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 Amended Credit Agreement.

Section 4.04 Continued Effectiveness; Ratification of Loan Documents . The Original Credit 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.

Section 4.05 No Change of Control . For the avoidance of doubt, it is understood and agreed that, effective upon the Amendment Effective Date, as a result of the effectiveness of this Amendment, the Irish Transaction will not result in an Event of Default under Article VI(m) of the Original Credit Agreement.

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 reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof and thereof (whether or not the transactions contemplated hereby or thereby shall be consummated).

Section 5.03 Loan Document . This Amendment shall be deemed to be a Loan Document.

Section 5.04 Binding Effect . This Amendment shall be binding upon and inure to the benefit of the Borrower, Covidien Ltd., the Lenders and the Administrative Agent and, in each case, their respective successors and assigns.

 

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Section 5.05 Governing Law . This Amendment shall be governed by, and construed in accordance with, the law of the State of New York.

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[Signature Page to Amendment No. 2 to Revolving Credit Agreement (Covidien International Finance S.A.)]

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

 

[Signature Page to Amendment No. 2 to Revolving Credit Agreement (Covidien International Finance S.A.)]

 

[Signature Page to Amendment No. 2 to Revolving Credit Agreement (Covidien International Finance S.A.)]

 

[Signature Page to Amendment No. 2 to Revolving Credit Agreement (Covidien International Finance S.A.)]

 

[Signature Page to Amendment No. 2 to Revolving Credit Agreement (Covidien International Finance S.A.)]

 

[Signature Page to Amendment No. 2 to Revolving Credit Agreement (Covidien International Finance S.A.)]

 

[Signature Page to Amendment No. 2 to Revolving Credit Agreement (Covidien International Finance S.A.)]

 

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Exhibit A

 

Published CUSIP Number: 22303MAB5

AMENDED AND RESTATED FIVE-YEAR SENIOR CREDIT AGREEMENT

dated as of

             , 2009

among

COVIDIEN INTERNATIONAL FINANCE S.A.,

Borrower

COVIDIEN LTD. and COVIDIEN PLC,

Guarantors

The Lenders Party Hereto

and

CITIBANK, N.A.

as Administrative Agent

CITIGROUP GLOBAL MARKETS INC. and UBS SECURITIES LLC

as Joint Bookrunners and Joint Lead Arrangers

CITIGROUP GLOBAL MARKETS INC.

BANC OF AMERICA SECURITIES LLC

as Global Coordinators

TABLE OF CONTENTS

 

 

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SCHEDULES:

Schedule 1.01 - Pricing Grid

Schedule 2.01 - Commitments

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 Covidien Ltd.

Exhibit C-2 - Form of opinion of general counsel of Covidien plc

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

Exhibit C-4 - Form of opinion of special Bermuda counsel

Exhibit C-5 - Form of opinion of special New York counsel

Exhibit C-6 - Form of opinion of special Irish counsel

Exhibit D - Form of Subsidiary Guaranty

 

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AMENDED AND RESTATED FIVE-YEAR SENIOR CREDIT AGREEMENT (this “Agreement”) dated as of             , 2009, among COVIDIEN INTERNATIONAL FINANCE S.A., a Luxembourg company (the “ Borrower ”), COVIDIEN LTD., a Bermuda company (“ Covidien Ltd. ”), COVIDIEN PLC, an Irish company (“ Holdco ”), the LENDERS, and CITIBANK, N.A., as Administrative Agent.

RECITALS

The Borrower, Covidien Ltd. and the Lenders are party to the Five-Year Senior Credit Agreement (Healthcare Businesses) dated as of April 25, 2007, as amended by Amendment No. 1 to Five-Year Senior Credit Agreement (Healthcare Businesses) dated as of November 6, 2007 (the “ Original Credit Agreement ”).

Covidien Ltd. intends to consummate a series of transactions which will result in the common shareholders of Covidien Ltd. becoming the ordinary shareholders of Holdco and Covidien Ltd. becoming a Wholly-Owned Consolidated Subsidiary of Holdco. Such transactions are more particularly described in Covidien Ltd.’s Form Pre 14 A filed February 6, 2009 (the “ Irish Transaction ”);

In connection with the Irish Transaction, the Borrower and Covidien Ltd. have requested that the Lenders agree to certain amendments to the Original Credit Agreement;

Such amendments require the consent of all Lenders and all Lenders consented to the amendments in Amendment No. 2 to Five-Year Senior Credit Agreement, dated as of March     , 2009 among the Borrower, Covidien Ltd., the Lenders party thereto and the Administrative Agent (“ Amendment No. 2 ”);

The parties hereto agree to amend and restate the Original Credit Agreement to reflect such amendments 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 Holdco and its Subsidiaries as of the end of the most recently completed fiscal quarter of Holdco prior to such date of determination determined on a consolidated basis in accordance with GAAP.

 

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

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

“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, the term “ control ” (including the terms “ controlling ” and “ under common control with ”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.

“ Alternate Base Rate ” means, for any day, a rate per annum equal to the greater of (a) the Base Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus  ¹ / 2 of 1%. Any change in the Alternate Base Rate due to a change in the 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.

“ Amendment No. 2 ” has the meaning set forth in the recitals hereto.

“ Applicable Margin ” means, with respect to any Eurodollar Loan, the applicable CDS Spread; provided , if the CDS Spread is unavailable as of the applicable date of determination, the Borrower and the Lenders will negotiate in good faith to agree on an alternative method for establishing the Applicable Margin; provided, further if the Borrower and the Lenders are unable to negotiate on an alternate method within 30 days, the Applicable Margin shall be the “Applicable Cap” set forth on the Pricing Grid for the then applicable Index Debt Rating.

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

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

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

 

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

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

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

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

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

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

“ 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.

“ CDS Spread ” means the rate per annum equal to the five-year credit default swap mid-rate spread of the Borrower (or of Holdco if such rate is not available for the Borrower), as provided by Markit Group Limited (or any successor thereto, or if Markit Group Limited or any successor thereto is no longer providing quotations of such spread, any other entity of recognized reputation then providing such quotations as reasonably selected by the Administrative Agent and notified to the Borrower and the Lenders) as of the close of business, New York time, two Business Days prior to the commencement of the applicable Interest Period; provided that the CDS Spread shall at no time be less than the rate per annum set forth on the Pricing Grid opposite the reference to the applicable Index Debt Rating under the heading “Applicable Floor” or greater than the rate per annum set forth on the Pricing Grid opposite the reference to the applicable Index Debt Rating under the heading “Applicable Cap” as of the applicable date of determination.

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

“ Citibank ” means Citibank, N.A.

 

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

“ Commitment ” means, with respect to each Lender at any time, the commitment of such Lender to make Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder at such time, as such commitment may be (a) 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 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 aggregate amount of the Lenders’ Commitments as of the date hereof is $1,500,000,000.

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

“ 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 Holdco 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. If during such period Holdco 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 Holdco 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.

 

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

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

“ Consolidated Total Debt ” means, as of any date of determination, the aggregate amount of Debt of Holdco 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 Holdco; provided , further 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 Holdco 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.

“ Covidien Ltd. ” has the meaning set forth in the preamble hereto.

“ 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 any 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

 

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(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.

“ Defaulting Lender ” means, at any time, a Lender (i) that has failed for three or more Business Days to comply with its obligations under this Agreement to make a Loan (a “funding obligation”), (ii) that has notified the Administrative Agent, or has stated publicly, that it will not comply with any such funding obligation hereunder, or has defaulted on its funding obligations under any other loan agreement or credit agreement or other similar agreement, (iii) that has, for three or more Business Days, failed to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent, that it will comply with its funding obligations hereunder, (iv) with respect to which a Lender Insolvency Event has occurred and is continuing or (v) that has otherwise failed to pay over to the Administrative Agent or any Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute; provided , however that any determination that a Lender is a Defaulting Lender under clauses (i) through (v) above will be made by the Administrative Agent in its sole discretion acting in good faith; provided that the Administrative Agent shall not unreasonably reject a request by the Borrower that a Lender be declared a Defaulting Lender. The Administrative Agent will promptly send to all parties hereto notice of any Lender being determined to be a Defaulting Lender.

“ Designated Officer ” means the chief executive officer, president, chief financial officer or treasurer of Tyco Healthcare Group LP.

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

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

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

 

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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 either 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 either 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 either Guarantor or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from either 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

 

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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 any Obligor with respect to such withholding tax pursuant to Section 9.05(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 Borrower and the Administrative Agent, (ii) the letter dated December 20, 2006 between the Borrower and the Global Coordinators and (iii) the letter dated March 24, 2009 between the Borrower and the Administrative Agent.

“ Fitch ” means Fitch, Inc.

“ 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 Covidien Ltd. or of Holdco if such rating is unavailable for Covidien Ltd., by Fitch.

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

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

“ 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

 

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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 each of Covidien Ltd. and Holdco.

“ Guarantor Assumption Agreement ” means the Guarantor Assumption Agreement dated as of June 29, 2007 between the Initial Guarantor and Covidien Ltd.

“ 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.

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

“ 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 Guarantors 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 Closing Date ” means April 25, 2007.

 

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“ Initial Effective Date ” means June 30, 2007.

“ Initial Guarantor ” means Tyco International Ltd., a Bermuda company.

“ 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 Holdco prepared on a Consolidated basis as of such date.

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

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

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

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

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

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

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

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

 

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“ Irish Transaction ” has the meaning set forth in the recitals hereto.

“ Lender Insolvency Event ” means that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment.

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

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

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

“ Loan Documents ” means this Agreement, each Note (if any), the 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 Holdco 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.

 

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“ Material Debt ” means Debt (other than Loans or other Debt under this Agreement) of any one or more of Holdco and its Subsidiaries in an aggregate principal amount exceeding $50,000,000.

“ Maturity Date ” means April 25, 2012.

“ 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 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 Covidien Ltd. or of Holdco if such rating is unavailable for Covidien Ltd., by Moody’s.

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

“ Nonrecourse Debt ” means, at any time, all Debt of Subsidiaries (and all other Persons which are consolidated on Holdco’s financial statements in accordance with GAAP (such Subsidiaries or other Persons a “ Consolidated Person ”)) of Holdco’s 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 Holdco or such other Consolidated Person of Holdco) 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 (i) 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) and (ii) any promissory note made by the Borrower pursuant to the Original Credit Agreement.

“ Obligors ” means the Borrower and the Guarantors.

“ Original Credit Agreement ” has the meaning set forth in the recitals hereto.

“ 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.

“ Parent Company ” means, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

 

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

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

“ Permitted 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 Holdco and/or any of its Subsidiaries, and financing secured by the assets so sold, pursuant to which Holdco 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 either Guarantor or any Subsidiary, as the case may be, that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder, in whole or in part, on or prior to the Maturity Date.

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

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

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

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

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

 

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“ 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 Covidien Ltd. (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 or (iii) the Chief Executive Officer, President, Vice President and Chief Financial Officer, Treasurer or Secretary of Holdco.

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

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

“ S&P Rating ” means, at any time, the rating published by S&P of the Borrower’s Index Debt 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 Covidien Ltd., or of Holdco if such rating is unavailable for Covidien Ltd., by S&P.

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

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

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

(ii) Holdco’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 Holdco 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, each of the Borrower and Covidien Ltd. shall at all times be deemed a “Significant Subsidiary”.

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

 

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“ 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 Covidien Ltd. or Holdco.

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

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

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

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

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

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

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

“ 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.

 

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

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

The definitions of terms herein and therein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “ include ”, “ includes ” and “ including ” shall be deemed to be followed by the phrase “ without limitation ”. The word “ will ” shall be construed to have the same meaning and effect as the word “ shall ”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “ herein ”, “ hereof ” and “ hereunder ”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear and (e) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

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

ARTICLE II

The Credits

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

 

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Credit Exposures exceeding the total Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Loans. The Obligors and the Lenders acknowledge and agree that any Loans outstanding under the Original Credit Agreement as of the Effective Date shall be deemed made pursuant to the terms hereof, shall be subject to and governed by the terms and conditions hereof and shall be considered Loans under this Agreement.

Section 2.02 Loans and Borrowings .

(a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their then applicable respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder.

(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 a form approved by the Administrative Agent, and be executed by a Managing Director of the Borrower or another authorized borrowing representative of the Borrower, as notified by the Borrower to the Administrative Agent from time to time. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:

(i) the aggregate amount of the requested Borrowing;

 

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

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

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

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

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

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

Section 2.04 [Intentionally Omitted] .

Section 2.05 Funding of Borrowings .

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

 

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(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, 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.

 

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(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 res