Exhibit 4.5
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE NO. 18
$600,000,000
4.95% Notes due 2003
THIS SUPPLEMENTAL INDENTURE NO. 18, dated as of July 30, 2001, among
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "COMPANY"), TYCO
INTERNATIONAL LTD., a Bermuda company ("TYCO"), and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the "TRUSTEE").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and Tyco have heretofore executed and delivered
to the Trustee an Indenture, dated as of June 9, 1998 (the "INDENTURE"),
providing for the issuance from time to time of one or more series of the
Company's Securities;
WHEREAS, Article Seven of the Indenture provides for various matters
with respect to any series of Securities issued under the Indenture to be
established in an indenture supplemental to the Indenture; and
WHEREAS, Section 7.1(e) of the Indenture provides that the Company,
Tyco and the Trustee may enter into an indenture supplemental to the Indenture
to establish the form or terms of Securities of any series as permitted by
Sections 2.1 and 2.4 of the Indenture;
NOW, THEREFORE, in consideration of the premises and the issuance of
the series of Securities provided for herein, the Company, Tyco and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders of the Securities of such series as follows:
ARTICLE 1
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1 INTEGRAL PART. This Supplemental Indenture No. 18
constitutes an integral part of the Indenture.
SECTION 1.2 GENERAL DEFINITIONS. For all purposes of this
Supplemental Indenture No. 18:
(a) capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture No. 18;
(c) the terms "herein", "hereof", "hereunder" and other words of
similar import refer to this Supplemental Indenture No. 18; and
(d) in the event of a conflict between any definition set forth in
the Indenture and any definition set forth in this Supplemental Indenture No.
18, the definition set forth in this Supplemental Indenture No. 18 shall
control.
SECTION 1.3 DEFINITIONS. The following definitions shall apply to
this Supplemental Indenture No. 18:
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which banking institutions in The City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"NOTES" means the 4.95% Notes due 2003 of the Company to which this
Supplemental Indenture No. 18 relates.
ARTICLE 2
THE SERIES OF NOTES
SECTION 2.1 TITLE OF THE SECURITIES. There shall be a series of
Securities designated as the "4.95% Notes due 2003" (the "NOTES").
SECTION 2.2 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT; DATE OF NOTES.
The aggregate principal amount of the Notes shall not initially exceed
$600,000,000 (unless the issue of such series of Notes is "reopened" pursuant to
Section 7.1(h) of the Indenture (as set forth herein) by issuing additional
Notes of such series, in an amount or amounts and registered in the names of
such Persons as shall be set forth in any written order of the Issuer for the
authentication and delivery of Notes pursuant to Section 2.5 of the Indenture).
Each Note shall be dated the date of its authentication.
SECTION 2.3 PRINCIPAL PAYMENT DATE. Subject to the provisions of
Section 2.6 hereof and Articles Four and Twelve of the Indenture, the principal
of the Notes shall be due and payable in a single installment on August 1, 2003.
SECTION 2.4 INTEREST AND INTEREST RATE. Interest on the Notes shall
be payable semi-annually in arrears on February 1 and August 1 of each year
beginning on February 1, 2002 (each, an "INTEREST PAYMENT DATE"); provided,
however, that if an Interest Payment Date would otherwise be a day that is not a
Business Day, such Interest Payment Date shall be the next
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succeeding Business Day, and no additional interest shall be paid in respect of
such intervening period.
The interest payable on each Interest Payment Date shall be the
amount of interest accrued from July 30, 2001 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, until the principal amount of the Notes has been paid or duly provided
for. Interest shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
The interest rate borne by the Notes will be 4.95% per annum until
the Notes are paid in full.
The interest payable on any Note which is punctually paid or duly
provided for on any Interest Payment Date shall be paid to the Person in whose
name such Note is registered at the close of business on January 15 or July 15
(in each case, whether or not a Business Day), respectively, immediately
preceding such Interest Payment Date (each, a "REGULAR RECORD DATE"). Interest
payable on any Note which is not punctually paid or duly provided for on any
Interest Payment Date therefor shall forthwith cease to be payable to the Person
in whose name such Note is registered at the close of business on the Regular
Record Date immediately preceding such Interest Payment Date, and such interest
shall instead be paid to the Person in whose name such Note is registered at the
close of business on the record date established for such payment by notice by
or on behalf of the Company to the Holders of the Notes mailed by first-class
mail not less than 15 days prior to such record date to their last addresses as
they shall appear upon the Security register, such record date to be not less
than five days preceding the date of payment of such defaulted interest.
SECTION 2.5 PLACE OF PAYMENT. The place of payment where the Notes
may be presented or surrendered for payment, where the principal of and interest
and any other payments due on the Notes are payable, where the Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Notes and the Indenture may be
served shall be in the Borough of Manhattan, The City of New York, and the
office or agency maintained by the Company for such purpose shall initially be
the Corporate Trust Office of the Trustee.
At the option of the Company, interest on the Notes may be paid (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the register of Holders of the Notes or (ii) at the expense of
the Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in writing to the Trustee by such Person by the applicable
record date.
SECTION 2.6 REDEMPTION. Subject to Section 12.1 of the Indenture,
the notes shall not be redeemable by the Company prior to maturity.
The Company shall have no obligation to redeem or purchase the Notes
pursuant to any sinking fund or analogous provisions or upon the happening of
any specified event or at the option of any Holder of the Notes.
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SECTION 2.7 ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS. For purposes
of the Notes, Sections 12.1 and 12.2 of the Indenture are amended in their
entirety to read as follows:
SECTION 12.1. REDEMPTION UPON CHANGES IN WITHHOLDING TAXES. The
Notes may be redeemed, as a whole but not in part, at the option of the Company,
upon not less than 30 nor more than 60 days' notice (which notice shall be
irrevocable), at a redemption price equal to 100% of the principal amount
thereof, together with accrued interest, if any, to the redemption date and
Additional Amounts (as defined in Section 12.2), if any, if as a result of any
amendment to, or change in, the laws or regulations of Luxembourg or Bermuda or
any political subdivision or taxing authority thereof or therein having power to
tax (a "TAXING AUTHORITY"), or any change in the application or official
interpretation of such laws or regulations which amendment or change is
announced or becomes effective after the date the Notes are issued, the Company
or Tyco has become or will become obligated to pay Additional Amounts, on the
next date on which any amount would be payable with respect to the Notes, and
such obligation cannot be avoided by the use of reasonable measures available to
the Company or Tyco, as the case may be, provided, however, that (a) no such
notice of redemption may be given earlier than 60 days prior to the earliest
date on which the Company or Tyco, as the case may be, would be obligated to pay
such Additional Amounts, and (b) at the time such notice of redemption is given,
such obligation to pay such Additional Amounts remains in effect. Prior to the
giving of any notice of redemption described in this paragraph, the Company
shall deliver to the Trustee (i)(I) a certificate signed by two directors of the
Company stating that the obligation to pay Additional Amounts cannot be avoided
by the Company taking reasonable measures available to it or (II) a certificate
signed by two executive officers of Tyco stating that the obligation to pay
Additional Amounts cannot be avoided by Tyco taking reasonable measures
available to it, as the case may be, and (ii) a written opinion of independent
legal counsel to the Company or Tyco, as the case may be, of recognized standing
to the effect that the Company or Tyco, as the case may be, has or will become
obligated to pay Additional Amounts as a result of a change, amendment, official
interpretation or application described above and that the Company or Tyco, as
the case may be, cannot avoid the payment of such Additional Amounts by taking
reasonable measures available to it.
SECTION 12.2. PAYMENT OF ADDITIONAL AMOUNTS. All payments made by
the Company, Tyco and any other Guarantor under or with respect to the Notes and
the Guarantees will be made free and clear of and without withholding or
deduction for or on account of any present or future taxes, duties, levies,
imposts, assessments or governmental charges of whatever nature imposed or
levied by or on behalf of any Taxing Authority ("TAXES"), unless the Company,
Tyco or such Guarantor, as the case may be, is required to withhold or deduct
Taxes by law or by the interpretation or administration thereof. In the event
that the Company, Tyco or such Guarantor is required to so withhold or deduct
any amount for or on account of any Taxes from any payment made under or with
respect to the Notes or the Guarantees, as the case may be, the Company, Tyco or
such Guarantor, as the case may be, will pay such additional amounts
("ADDITIONAL AMOUNTS") as may be necessary so that the net amount received by
each Holder of Notes (including Additional Amounts) after such withholding or
deduction will equal the amount that such Holder would have received if such
Taxes had not been required to be withheld or deducted; provided that no
Additional Amounts will be payable with respect to a payment made to a Holder of
Notes to the extent:
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(a) that any such Taxes would not have been so imposed but for the
existence of any present or former connection between such Holder and the Taxing
Authority imposing such Taxes (other than the mere receipt of such payment,
acquisition, ownership or disposition of such Notes or the exercise or
enforcement of rights under such Notes, the Guarantees or this Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or personal
property Taxes imposed with respect to such Notes, except as otherwise provided
herein;
(c) that any such Taxes would not have been so imposed but for the
presentation of such Notes or Guarantees (where presentation is required) for
payment on a date more than 30 days after the date on which such payment became
due and payable or the date on which payment thereof is duly provided for,
whichever is later, except to the extent that the beneficiary or Holder thereof
would have been entitled to Additional Amounts had the Notes or Guarantees been
presented for payment on any date during such 30-day period; or
(d) that such Holder would not be liable or subject to such
withholding or deduction of Taxes but for the failure to make a valid
declaration of non-residence or other similar claim for exemption, if (x) the
making of such declaration or claim is required or imposed by statute, treaty,
regulation, ruling or administrative practice of the relevant Taxing Authority
as a precondition to an exemption from, or reduction in, the relevant Taxes, and
(y) at least 60 days prior to the first payment date with respect to which the
Company, Tyco or such Guarantor shall apply this clause (d), the Company, Tyco
or such Guarantor shall have notified all Holders of Notes in writing that they
shall be required to provide such declaration or claim.
The Company, Tyco or such Guarantor, as the case may be, will also
(i) make such withholding or deduction of Taxes and (ii) remit the full amount
of Taxes so deducted or withheld to the relevant Taxing Authority in accordance
with all applicable laws. The Company, Tyco or such Guarantor, as the case may
be, will use its reasonable best efforts to obtain certified copies of tax
receipts evidencing the payment of any Taxes so deducted or withheld from each
Taxing Authority imposing such Taxes. The Company, Tyco or such Guarantor, as
the case may be, will, upon request, make available to the Holders of the Notes,
within 60 days after the date the payment of any Taxes so deducted or withheld
is due pursuant to applicable law, certified copies of tax receipts evidencing
such payment by the Company, Tyco or such Guarantor or if, notwithstanding the
Company's, Tyco's or such Guarantor's efforts to obtain such receipts, the same
are not obtainable, other evidence of such payments by the Company, Tyco or such
Guarantor.
At least 30 days prior to each date on which any payment under or
with respect to the Notes or Guarantees is due and payable, if the Company, Tyco
or such Guarantor will be obligated to pay Additional Amounts with respect to
such payment, the Company, Tyco or such Guarantor will deliver to the Trustee an
Officers' Certificate stating the fact that such Additional Amounts will be
payable, the amounts so payable and will set forth such other information as is
necessary to enable such Trustee to pay such Additional Amounts to Holders of
Notes on the payment date.
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In addition, the Company, Tyco or such Guarantor, as the case may
be, will pay any stamp, issue, registration, documentary or other similar taxes
and duties, including interest, penalties and Additional Amounts with respect
thereto, payable in Luxembourg Bermuda or the United States or any political
subdivision or taxing authority of or in the foregoing in respect of the
creation, issue, offering, enforcement, redemption or retirement of the Notes or
the Guarantees.
The foregoing provisions shall survive any termination or the
discharge of the Indenture and shall apply MUTATIS MUTANDIS to any jurisdiction
in which any successor Person to the Company, Tyco or such Guarantor, as the
case may be, is organized or is engaged in business for tax purposes or any
political subdivisions or taxing authority or agency thereof or therein;
provided, however, the date on which such Person becomes a successor to the
Company, Tyco or such Guarantor, as the case may be, shall be substituted for
the date on which the series of Notes was issued.
Whenever in the Indenture, the Notes or the Guarantees there is
mentioned, in any context, the payment of principal (and premium, if any),
redemption price, interest or any other amount payable under or with respect to
any Notes or Guarantees, such mention shall be deemed to include mention of the
payment of Additional Amounts to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof.
SECTION 2.8 DENOMINATION. The Notes shall be issued in denominations
of $1,000 and integral multiples thereof.
SECTION 2.9 CURRENCY. Principal and interest on the Notes shall be
payable in United States dollars.
SECTION 2.10 NOTES TO BE ISSUED IN GLOBAL FORM: EXCHANGE FOR
CERTIFICATED NOTES. The Notes will be initially represented by one or more Notes
in global form (the "GLOBAL NOTE"). The Company hereby designates The Depository
Trust Company as the initial Depositary for the Global Note. The Global Note
will be deposited with the Trustee, as custodian for the Depositary. Unless and
until it is exchanged in whole or in part for Notes in certificated form, the
Global Note may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary for the Notes or a nominee of such successor Depositary.
The Depositary may surrender the Global Note in exchange in whole or in part for
Notes in certificated form on such terms as are acceptable to the Company and
Depositary.
The Company may at any time in its sole discretion determine that
all or any portion of the Notes shall no longer be represented by a Note or
Notes in global form. In such event the Company shall execute, and the Trustee,
upon receipt of a written Company order (pursuant to Section 2.5 of the
Indenture) for the authentication and delivery of certificated Notes of like
tenor, shall authenticate and deliver Notes of like tenor in certificated form,
in authorized denominations and in an aggregate principal amount equal to the
applicable principal amount of the Global Note, in exchange for such Global Note
(or the applicable portion thereof).
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SECTION 2.11 FORM OF NOTES. The Notes shall be substantially in the
form attached as Exhibit A hereto.
SECTION 2.12 DEFEASANCE AND COVENANT DEFEASANCE. The provisions of
Article Nine of the Indenture shall apply to the Notes.
SECTION 2.13 ISSUANCE OF ADDITIONAL NOTES. For purposes of the
Notes, Section 7.1 of the Indenture is hereby amended by inserting therein a new
Section 7.1(h) to read as follows:
"(h) to issue additional Securities of any series in the future
pursuant to Section 2.5 of this Indenture; PROVIDED, that such additional
Securities have the same terms as, and be deemed part of the same series as, the
applicable series of Securities issued hereunder."
SECTION 2.14 DEFINITION OF PERMITTED SUBSIDIARY INDEBTEDNESS. Clause
(vi) of the definition of "Permitted Subsidiary Indebtedness" in Section 1.1 of
the Indenture is amended by inserting after the phrase "Acquired Indebtedness
that by its terms is not" the following phrase:
", at the time it becomes Acquired Indebtedness or within 180 days
thereafter,"
SECTION 2.15 DEFINITION OF RESTRICTED SUBSIDIARY. The definition of
"Restricted Subsidiary" in Section 1.1 of the Indenture is amended in its
entirety to read as follows:
""RESTRICTED SUBSIDIARY" means any Subsidiary of the Company which
owns or leases a Principal Property."
ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.1 ADOPTION, RATIFICATION AND CONFIRMATION. The Indenture,
as supplemented and amended by this Supplemental Indenture No. 18, is in all
respects hereby adopted, ratified and confirmed.
SECTION 3.2 COUNTERPARTS. This Supplemental Indenture No. 18 may be
executed in any number of counterparts, each of which when so executed shall be
deemed an original; and all such counterparts shall together constitute but one
and the same instrument.
SECTION 3.3 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE NO. 18, EACH
NOTE AND EACH GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES
THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 18 to be duly executed as of the day and year first written above.
TYCO INTERNATIONAL GROUP S.A.
By:
-----------------------------------------
Name: Xxxxxxxxxxxx Xxxxxxx
Title: Managing Director
TYCO INTERNATIONAL LTD.
By:
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
Chief Financial Officer
THE BANK OF NEW YORK, Trustee
By:
-----------------------------------------
Name:
Title:
EXHIBIT A
[FORM OF FACE OF GLOBAL NOTE]
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in
definitive registered form, this Note may not be transferred except as a whole
by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
TYCO INTERNATIONAL GROUP S.A.
4.95% Note due 2003
No.
$ CUSIP:
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "ISSUER"),
for value received, hereby promises to pay to CEDE & CO. or registered assigns,
the principal sum of $ on August 1, 2003, at the office or agency of the
Issuer in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay
semi-annually in arrears on February 1 and August 1 of each year (each, an
"INTEREST PAYMENT DATE"; provided, however, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment Date
shall be the next succeeding Business Day but no additional interest shall be
paid in respect of such intervening period), commencing February 1, 2002, the
amount of interest on said principal sum at said office or agency, in like coin
or currency, at the rate per annum specified in the title of this Note, from
July 30, 2001 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for until said principal sum has been paid or
duly provided for. Interest shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. For purposes of this Note, "BUSINESS DAY"
means any day other than a Saturday, a Sunday or a day on which banking
institutions in The City of New York are authorized or obligated by law,
regulation or executive order to be closed.
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The interest payable on any Interest Payment Date which is
punctually paid or duly provided for on such Interest Payment Date will be paid
to the Person in whose name this Note is registered at the close of business on
January 15 or July 15 (in each case, whether or not a Business Day), as the case
may be (each, a "REGULAR RECORD DATE"), immediately preceding such Interest
Payment Date. Interest payable on this Note which is not punctually paid or duly
provided for on any Interest Payment Date therefor shall forthwith cease to be
payable to the Person in whose name this Note is registered at the close of
business on the Regular Record Date immediately preceding such Interest Payment
Date, and such interest shall instead be paid to the Person in whose name this
Note is registered at the close of business on the record date established for
such payment by notice by or on behalf of the Issuer to the Holders of the Notes
mailed by first-class mail not less than 15 days prior to such record date to
their last addresses as they shall appear upon the Security register, such
record date to be not less than five days preceding the date of payment of such
defaulted interest. At the option of the Issuer, interest on the Notes may be
paid (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Holders of the Notes or (ii) at the
expense of the Issuer, by wire transfer to an account maintained by the Person
entitled thereto as specified in writing to the Trustee by such Person by the
applicable record date of the Notes.
Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this
instrument to be signed by its duly authorized Managing Directors.
Dated:
TYCO INTERNATIONAL GROUP S.A.
By:__________________________________
Name:
Title:
By:____________________________________
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:____________________________________
Authorized Signatory
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GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Note the
payment of principal of, and interest on, the Note upon which this Guarantee is
endorsed in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest, if any, of such Note, if lawful, and the payment or performance of all
other obligations of the Issuer under the Indenture or the Notes, to the holder
of such Note and the Trustee, all in accordance with and subject to the terms
and limitations of such Note and Article Thirteen of the Indenture. This
Guarantee will not become effective until the Trustee duly executes the
certificate of authentication on this Note. This Guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of law principles thereof. All references in this Guarantee
to interest shall include any Additional Amounts.
Dated:
TYCO INTERNATIONAL LTD.
By:____________________________________
Name:
Title:
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TYCO INTERNATIONAL GROUP S.A.
4.95% Note due 2003
1. INDENTURE. (a) This Note is one of a duly authorized issue of
notes of the Issuer (hereinafter called the "NOTES") of a series designated as
the 4.95% Notes due 2003 of the Issuer, initially limited in aggregate principal
amount to $600,000,000, all issued or to be issued under and pursuant to an
indenture, dated as of June 9, 1998, as amended and supplemented by Supplemental
Indenture No. 18, dated as of July 30, 2001 (as so amended and supplemented, the
"INDENTURE"), among the Issuer, Tyco International Ltd. ("TYCO") and The Bank of
New York, as Trustee (herein called the "TRUSTEE"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Issuer, Tyco, the Trustee and the Holders of the Notes.
(b) Other debentures, notes, bonds or other evidences of
indebtedness (together with the Notes, hereinafter called the "Securities") may
be issued under the Indenture in one or more series, which different series may
be issued in various aggregate principal amounts, may mature at different times,
may bear interest (if any) at different rates, may be subject to different
redemption provisions (if any), may be subject to different sinking, purchase or
analogous funds (if any) and may otherwise vary from the Notes and each other,
as in the Indenture provided.
(c) All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
2. AMENDMENTS AND WAIVERS. (a) The Indenture contains provisions
permitting the Issuer and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Securities of each such series; provided, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 4.1 of the Indenture or the amount thereof provable in
bankruptcy pursuant to Section 4.2 of the Indenture, or impair or affect the
rights of any Holder to institute suit for the payment thereof, without the
consent of the Holder of each Security so affected, or (ii) reduce the aforesaid
percentage of Securities, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holder of each Security
affected.
(b) It is also provided in the Indenture that, with respect to
certain defaults or Events of Default regarding the Securities of any series,
prior to any declaration accelerating the maturity of such Securities, the
Holders of a majority in aggregate principal amount Outstanding
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of the Securities of such series (or, in the case of certain defaults or Events
of Default, all or certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default in the payment of the principal of, premium, if any, or interest on any
of the Securities. Any such consent or waiver by the Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Note and any Notes which
may be issued in exchange or substitution herefor, irrespective of whether or
not any notation thereof is made upon this Note or such other Notes.
3. OBLIGATION TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, Tyco or any other
obligor on the Notes, which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on this Note in the manner, at the respective
times, at the rate, at the place and in the coin or currency herein prescribed.
4. REDEMPTION. Subject to Section 12.1 of the Indenture, the Notes
shall not be redeemable by the Company prior to maturity.
5. CERTAIN COVENANTS. The Indenture restricts the Issuer's ability
to merge, consolidate or sell substantially all of its assets. In addition, the
Issuer is obliged to abide by certain covenants, including covenants limiting
the amount of liens it may incur, as well as its ability to enter into sale and
leaseback transactions, a covenant limiting the ability of its subsidiaries to
incur indebtedness, and a covenant requiring it to pay or discharge all taxes,
all as more fully described in the Indenture. All of such covenants are subject
to the covenant defeasance procedures outlined in the Indenture.
6. EFFECT OF EVENT OF DEFAULT. If an Event of Default shall have
occurred and be continuing under the Indenture, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
7. DEFEASANCE. The Indenture contains provisions for defeasance and
covenant defeasance at any time of the indebtedness on this Note upon compliance
by the Issuer with certain conditions set forth therein.
8. DENOMINATIONS; TRANSFER. (a) The Notes are issuable in registered
form without coupons in denominations of $1,000 and any multiple of $1,000 at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations provided in the
Indenture.
(b) Upon due presentment for registration of transfer of this Note
at the office or agency of the Issuer in the Borough of Manhattan, The City of
New York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture. This Note may also be surrendered
for exchange at the aforesaid office or agency for Notes in other authorized
denominations in an equal aggregate principal amount. No service charge shall be
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made for any registration of transfer or any exchange of the Notes, except that
the Issuer may require payment of any tax or other governmental charge imposed
in connection therewith.
(c) A certificate in global form representing all of a portion of
the Notes may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such Notes or a nominee of such
successor Depositary.
9. HOLDER AS OWNER. The Issuer, Tyco, the Trustee and any authorized
agent of the Issuer, Tyco or the Trustee may deem and treat the registered
Holder hereof as the absolute owner of this Note (whether or not this Note shall
be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
principal hereof and, subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and none of the Issuer, Tyco or the Trustee
or any authorized agent of the Issuer, Tyco or the Trustee shall be affected by
any notice to the contrary.
10. NO LIABILITY OF CERTAIN PERSONS. No recourse under or upon any
obligation, covenant or agreement of the Issuer or Tyco in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, or any
past, present or future shareholder, officer or director, as such, of the
Issuer, Tyco or of any successor corporation of either of them, either directly
or through the Issuer, Tyco or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
11. GUARANTEES. The payment and performance of all obligations of
the Issuer under the Indenture and this Note are fully and unconditionally
guaranteed to the holder of this Note by Tyco, as provided in the related
Guarantee and the Indenture.
12. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK GOVERN THE
INDENTURE AND THIS NOTE (AND THE GUARANTEE ENDORSED HEREON).
13. ADDITIONAL AMOUNTS. The Issuer and Tyco are obligated to pay
Additional Amounts on this Note to the extent provided in Article Twelve of the
Indenture.
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto:
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF ASSIGNEE
_____________________________
_____________________________
_____________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
the within Note of Tyco International Group S.A. and all rights thereunder and
hereby irrevocably constitutes and appoints such person attorney to transfer
such Note on the books of Tyco International Group S.A., with full power of
substitution in the premises.
Dated:
________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE
SIGNATURE SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST
COMPANY, A MEMBER ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY
SUCH OTHER ENTITY WHOSE SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO
THE TRANSFER AGENT.
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