Amendment

Amendment No. 2


Exhibit 10.2

 

Execution Copy

 

AMENDMENT NO. 2

 

Amendment No. 2, dated as of April 15, 2005, among TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the “Borrower”), TYCO INTERNATIONAL LTD., a Bermuda company (the “Parent”) (and together with the Borrower, the “Principal Obligors”), each required lender party hereto (collectively, the “Required Lenders” and individually, a “Required Lender”), and BANK OF AMERICA, N.A. as Paying Agent (in such capacity, the “Paying Agent”).

 

WITNESSETH

 

WHEREAS, the Borrower, the Parent, the Required Lenders, the Paying Agent and certain other financial institutions have entered into that certain U.S. $1,500,000,000 Three-Year Credit Agreement, dated as of December 22, 2003 (the “Agreement”);

 

WHEREAS, the Borrower, the Parent, the Paying Agent and the Required Lenders desire to amend the Agreement in certain respects;

 

NOW THEREFORE, in consideration of the premises and the mutual agreements, representations and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

SECTION 1.  Definitions and References.  Capitalized terms not otherwise defined herein shall have the meanings attributed thereto in the Agreement.

 

SECTION 2.  Amendments.

 

(a)          Section 1.01 of the Agreement is hereby amended by deleting the definition of “Affiliate”, and inserting the following new definition in its place:

 

Affiliate” means, as to any Person, (i) any other Person that directly, or indirectly through one or more intermediaries, controls such first Person or (ii) any Person which is controlled by or is under common control with such controlling Person, provided, that (a) neither the Parent nor any Subsidiary shall be deemed to be an Affiliate of a Principal Obligor, and (b) no Subsidiary shall be deemed to be an Affiliate of any other Subsidiary.  As used herein, the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.”

 

(b)          Section 6.08(ii) of the Agreement is hereby amended by deleting that section in its entirety and inserting in its place the following new Section 6.08(ii):

 

“(ii) Debt of any Consolidated Subsidiary (other than the Borrower) outstanding as of the Amendment Effective Date, and any Refinancings thereof or”

 

SECTION 3.  Representations True; No Event of Default.   The Principal Obligors represent and warrant on the Effective Date that:

 



 

(a)  The representations and warranties contained in Article V of the Agreement are correct on and as of the date of this Amendment as though made on and as of the date hereof after giving effect to this Amendment, except to the extent that any such representation or warranty specifically refers to an earlier date, in which case it shall be true and correct as of such earlier date.

 

(b)  No event has occurred and is continuing, or would result from the execution and delivery of this Amendment, which constitutes an Event of Default or which, with the giving of notice and/or the passage of time, would constitute an Event of Default.

 

(c)  This Amendment has been duly authorized, executed and delivered on behalf of each of the Principal Obligors.

 

(d)  Each of this Amendment and the Agreement, as amended hereby, constitutes a legal, valid and binding obligation of the Principal Obligors, enforceable against each of the Principal Obligors in accordance with its terms, except as the enforceability thereof may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar laws of general application relating to or affecting the rights and remedies of creditors generally or (ii) general principles of equity.

 

SECTION 4.  Ratification.  Except as amended hereby, the Agreement and all other documents executed in connection therewith (including without limitation, the Notes) shall remain in full force and effect.  The Agreement, as amended hereby, and all rights and powers created thereby or thereunder and under such other documents are in all respects ratified and confirmed.

 

SECTION 5.  Conditions Precedent.  Pursuant to Section 10.01 of the Agreement, this Amendment will become effective on and as of the first date (the “Effective Date”) on which the Paying Agent has received, in form and substance satisfactory to the Paying Agent and the Required Lenders, a counterpart of this Amendment duly executed by the Required Lenders and the Principal Obligors and acknowledged by the Paying Agent.  Until the occurrence of the Effective Date, the Agreement, without giving effect to this Amendment, shall continue in full force and effect in accordance with the provisions thereof and the rights and obligations of the parties thereto shall not be affected hereby, all Commitments and Loans thereunder shall continue as set forth therein and all interest accruing and other amounts payable under the Agreement shall continue to accrue and be payable as provided for therein.

 

SECTION 6.  Miscellaneous.

 

(a)  The Agreement and this Amendment shall be read, taken and construed as one and the same instrument from and after the Effective Date.

 

(b)  This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

 

(c)  Any references in the Agreement to “this Agreement”, “hereunder”, “herein” or words of like import, and each reference in any other document executed in connection with the Agreement (including without limitation, the Notes), to “the Agreement”, “thereunder”, “therein”

 

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or words of like import, shall, from and after the Effective Date, mean and be a reference to the Agreement as amended hereby.

 

(d)  The Borrower agrees to reimburse the Paying Agent for its reasonable out-of-pocket expenses in connection with this Amendment including the reasonable fees, charges and disbursements of Chadbourne & Parke LLP, counsel for the Paying Agent.

 

(e)  This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed an original and all of which taken together shall constitute one and the same agreement.

 

[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

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

 

 

 

TYCO INTERNATIONAL GROUP S.A.,
as Borrower

 

 

 

By:

/s/ KEVIN O'KELLY-LYNCH

 

 

 

 

Name:

Kevin O'Kelly-Lynch

 

 

 

 

Title:

Managing Director

 

 

 

 

TYCO INTERNATIONAL LTD., as
Parent

 

 

 

By:

/s/ CHRISTOPHER J. COUGHLIN

 

 

 

 

Name:

Christopher J. Coughlin

 

 

 

 

Title:

Executive Vice President & Chief Financial Officer

 

 

[Signature Page to the Amendment to the Three Year Credit Agreement]

 

S-1



 

 

BANK OF AMERICA, N.A., as Paying
Agent

 

 

 

By:

/s/ JOHN POCALYKO

 

 

 

 

Name:

John Pocalyko

 

 

 

 

Title:

Senior Vice President

 

 

S-2



 

 

BANK OF AMERICA, N.A., as a Lender

 

 

 

By:

/s/ JOHN POCALYKO

 

 

 

 

Name:

John Pocalyko

 

 

 

 

Title:

Senior Vice President

 

 

S-3



 

 

CITICORP NORTH AMERICA, INC., as
a Lender

 

 

 

By:

/s/ DIANE L. POCKAJ

 

 

 

 

Name:

Diane L. Pockaj

 

 

 

 

Title:

Vice President

 

 

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ABN AMRO BANK N.V.

 

 

 

By:

/s/ ERIC OPPENHEIMER

 

 

 

 

Name:

Eric Oppenheimer

 

 

 

 

Title:

Director

 

 

 

 

 

 

By:

/s/ KEVIN LEGALLO

 

 

 

 

Name:

Kevin Legallo

 

 

 

 

Title:

Assistant Vice President

 

 

S-5



 

 

AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

S-6



 

 

BANCO BILBAO VIZCAYA
ARGENTARIA S.A.

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

S-7



 

 

THE BANK OF N.T. BUTTERFIELD
& SON LTD.

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

S-8



 

 

THE BANK OF NOVA SCOTIA

 

 

 

By:

/s/ WILLIAM E. ZARRETT

 

 

 

 

Name:

William E. Zarrett

 

 

 

 

Title:

Managing Director

 

 

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BANK ONE

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

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BARCLAYS BANK PLC

 

 

 

By:

/s/ NICHOLAS A. BELL

 

 

 

 

Name:

Nicholas A. Bell

 

 

 

 

Title:

Director

 

 

S-11



 

 

BAYERISCHE HYPO-UND
VEREINSBANK AG, New York Branch

 

 

 

By:

/s/ MARIANNE WEINZINGER

 

 

 

 

Name:

Marianne Weinzinger

 

 

 

 

Title:

Director

 

 

 

 

 

 

By:

/s/ PATRICIA GRIEVE

 

 

 

 

Name:

Patricia Grieve

 

 

 

 

Title:

Director

 

 

S-12



 

 

BAYERISCHE LANDESBANK, NEW
YORK BRANCH

 

 

 

By:

/s/ DIETMAR RIEG

 

 

 

 

Name:

Dietmar Rieg

 

 

 

 

Title:

Senior Vice President

 

 

 

 

 

 

By:

/s/ NORMAN MCCLAVE

 

 

 

 

Name:

Norman McClave

 

 

 

 

Title:

First Vice President

 

 

S-13



 

 

BEAR STEARNS CORPORATE
LENDING INC.

 

 

 

By:

/s/ KEITH BARNIUSH

 

 

 

 

Name:

Keith Barniush

 

 

 

 

Title:

Executive Vice President

 

 

S-14



 

 

BNP PARIBAS

 

 

 

By:

/s/ RICHARD PACE

 

 

 

 

Name:

Richard Pace

 

 

 

 

Title:

Managing Director

 

 

 

 

 

 

By:

NANETTE BAUDON

 

 

 

 

Name:

Nanette Baudon

 

 

 

 

Title:

Vice President

 

 

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CITIBANK, N.A.

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

S-16



 

 

COMMERZBANK AG, New York and
Grand Cayman Branches

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

S-17



 

 

CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands
Branch

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

S-18



 

 

DEUTSCHE BANK AG NEW YORK
BRANCH

 

 

 

By:

/s/ BELINDA WHEELER

 

 

 

 

Name:

Belinda Wheeler

 

 

 

 

Title:

Director

 

 

 

 

 

 

By:

/s/ MING K. CHU

 

 

 

 

Name:

Ming K. Chu

 

 

 

 

Title:

Vice President

 

 

S-19



 

 

GOLDMAN SACHS CREDIT
PARTNERS L.P.

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

S-20



 

 

THE GOVERNOR AND COMPANY
OF THE BANK OF IRELAND

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

S-21



 

 

ING BELGIUM NV/SA

 

 

 

By:

/s/ YVES ADLER

 

 

 

 

Name:

Yves Adler

 

 

 

 

Title:

Directeur Adjoint

 

 

S-22



 

 

JPMORGAN CHASE BANK, N.A.

 

 

 

By:

/s/ ROBERT T. SACKS

 

 

 

 

Name:

Robert T. Sacks

 

 

 

 

Title:

Managing Director

 

 

S-23



 

 

LEHMAN COMMERCIAL PAPER INC.

 

 

 

By:

/s/ JANINE M. SHUGAN

 

 

 

 

Name:

Janine M. Shugan

 

 

 

 

Title:

Authorized Signatory

 

 

S-24



 

 

MANUFACTURERS AND TRADERS
TRUST COMPANY

 

 

 

By:

/s/ JOSHUA C. BECKER

 

 

 

 

Name:

Joshua C. Becker

 

 

 

 

Title:

Assistant Vice President

 

 

S-25



 

 

MELLON BANK, N.A.

 

 

 

By:

/s/ DANIEL J. LENCKOS

 

 

 

 

Name:

Daniel J. Lenckos

 

 

 

 

Title:

First Vice President

 

 

S-26



 

 

MERRILL LYNCH BANK USA

 

 

 

By:

/s/ LOUIS ALDER

 

 

 

 

Name:

Louis Alder

 

 

 

 

Title:

Director

 

 

S-27



 

 

MIZUHO CORPORATE BANK, LTD.

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

S-28



 

 

MORGAN STANLEY BANK

 

 

 

By:

/s/ DANIEL TWENGE

 

 

 

 

Name:

Daniel Twenge

 

 

 

 

Title:

Vice President

 

 

S-29



 

 

THE NORTHERN TRUST COMPANY

 

 

 

By:

/s/ JOHN A. KONSTANTOS

 

 

 

 

Name:

John A. Konstantos

 

 

 

 

Title:

Vice President

 

 

S-30



 

 

THE ROYAL BANK OF SCOTLAND,
PLC

 

 

 

By:

/s/ MARIA AMARAL-LEBLANC

 

 

 

 

Name:

Maria Amaral Le-Blanc

 

 

 

 

Title:

Senior Vice President

 

 

S-31



 

 

SAN PAOLO IMI S.p.A.

 

 

 

By:

/s/ RENATO CARDUCCI

 

 

 

 

Name:

Renato Carducci

 

 

 

 

Title:

General Manager

 

 

 

 

 

 

By:

/s/ LUCA SACCHI

 

 

 

 

Name:

Luca Sacchi

 

 

 

 

Title:

Vice President

 

 

S-32



 

 

SOCIETE GENERALE

 

 

 

By:

/s/ MARIA IARRICCIO

 

 

 

 

Name:

Maria Iarriccio

 

 

 

 

Title:

Vice President

 

 

S-33



 

 

SUMITOMO MITSUI BANKING
CORP., NEW YORK

 

 

 

By:

/s/ Y. HIRO HYAKUTOME

 

 

 

 

Name:

Y. Hiro Hyakutome

 

 

 

 

Title:

Deputy General Manager

 

 

S-34



 

 

UBS LOAN FINANCE LLC

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

 

S-35



 

 

WESTPAC BANKING CORPORATION

 

 

 

By:

/s/ ROBERT BOSSÉ

 

 

 

 

Name:

Robert Bossé

 

 

 

 

Title:

Vice President

 

 

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