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TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE NO. 5
$400,000,000
5.875% Notes due 2004
THIS SUPPLEMENTAL INDENTURE NO. 5, dated as of November 2, 1998, 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 ONE
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 RELATION TO INDENTURE. This Supplemental Indenture No. 5
constitutes an integral part of the Indenture.
SECTION 1.2 DEFINITIONS. For all purposes of this Supplemental Indenture
No. 5, the following terms shall have the respective meanings set forth below:
"ADJUSTED REDEMPTION TREASURY RATE" means, with respect to any
redemption date, the annual rate equal to the semiannual equivalent yield
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maturity or interpolated (on a 30/360 day count basis) yield to maturity
of the Comparable Redemption Treasury Issue, assuming a price for the
comparable Redemption Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Redemption Treasury Price for
such redemption date.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear or Cedel, as the case may be, that
apply to such transfer or exchange.
"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.
"CEDEL" means Cedel Bank, SA.
"COMPARABLE REDEMPTION TREASURY ISSUE" means the United States
Treasury security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the Notes to be redeemed that will be
utilized at the time of selection and in accordance with customary
financial practice in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such Notes.
"COMPARABLE REDEMPTION TREASURY PRICE" means, with respect to any
redemption date, (i) the average of the Redemption Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and
lowest such Redemption Reference Treasury Dealer Quotations (unless there
is more than one highest or lowest quotation, in which case only one such
highest and/or lowest quotation shall be excluded), or (ii) if the
Quotation Agent obtains fewer than four such Redemption Reference Treasury
Dealer Quotations, the average of all such Redemption Reference Treasury
dealer Quotations.
"CUSTODIAN" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"DEFINITIVE NOTE" means a certificated Note in the form of Exhibit A-1
hereto, registered in the name of the Holder thereof and issued in
accordance with Section 2.9 hereof, except that such Note shall not bear
the Global Note Legend.
"EUROCLEAR" means the Euroclear Clearance System.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer pursuant
to Section 2.9(f) hereof; following the exchange of interests in the Rule
144A Global Note, the Regulation S Global Note and the Restricted
Definitive Note for Exchange Notes pursuant to an effective registration
statement, the defined term
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"Exchange Notes" and "Notes" shall have the same meaning and be entitled to
the same rights under the Indenture.
"EXCHANGE OFFER" means the exchange offer by the Company of the
Exchange Notes for the Notes issued in reliance upon an exemption from
registration under the Securities Act on the date hereof in accordance with
the provisions of the Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, including the prospectus contained therein, all exhibits thereto
and all documents incorporated by reference therein filed by the Company
and Tyco in accordance with the Registration Rights Agreement in connection
with the Exchange Offer.
"GLOBAL NOTES" means, individually and collectively, any of the Notes
issued as global notes under the Indenture.
"GLOBAL NOTE LEGEND" means the legend set forth in Section 2.9(g)(ii),
which is required to be placed on all Global Notes issued under the
Indenture.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"INITIAL PURCHASER" means each of Xxxxxx Brothers Inc., X.X. Xxxxxx
Securities Inc., Credit Suisse First Boston Corporation and Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, who is not also a QIB.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders
in connection with the Exchange Offer.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" has the meaning assigned to it in Section 2.1 hereof.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall
include Euroclear and Cedel).
"PARTICIPATING BROKER DEALER" means the Initial Purchasers and any
other broker-dealer which makes a market in the Notes and exchanges Notes
in the
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Exchange Offer for Exchange Notes.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.9(g)(i) to be placed on all Notes issued under the Indenture except where
otherwise permitted by the provisions of the Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"QUOTATION AGENT" means a Redemption Reference Treasury Dealer
appointed as such agent by the Company.
"REDEMPTION REFERENCE TREASURY DEALER" means each of Xxxxxx Brothers
Inc. and four other primary U.S. Government securities dealers in The City
of New York selected by the Company.
"REDEMPTION REFERENCE TREASURY DEALER QUOTATIONS" means with respect
to each Redemption Reference Treasury Dealer and any redemption date, the
offer price for the Comparable Redemption Treasury Issue (expressed in each
case as a percentage of its principal amount) for settlement on the
redemption date quoted in writing to the Quotation Agent by such Redemption
Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of November 2, 1998, by and among the Company, Tyco and
the Initial Purchasers, as such agreement may be amended, modified or
supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the Securities Act
or any successor rule or regulation substantially to the same effect.
"REGULATION S GLOBAL NOTE" means a global Note in the form of Exhibit
A-2 hereto bearing the Global Note Legend and the legend in Section
2.9(g)(iii) hereof and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED PERIOD" means the period beginning on the date hereof and
ending on the date of receipt by the Trustee of (x) a written certificate
from the Depositary, together with copies of certificates required by Rule
903(b)(3)(ii)(B) under the Securities Act and (y) an Officers' Certificate
from the Company certifying as to the end of the end of the 40-day
restricted period as defined in Regulation S and any other matters required
by the Applicable Procedures.
"RULE 144" means Rule 144 promulgated under the Securities Act, any
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successor rule or regulation to substantially the same effect or any
additional rule or regulation under the Securities Act that permits
transfers of restricted securities without registration such that the
transferee thereof holds securities that are freely tradeable under the
Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act or
any successor rule or regulation to substantially the same effect.
"RULE 144A GLOBAL NOTE" means a global Note in the form of Exhibit A-1
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee.
"RULE 903" means Rule 903 promulgated under the Securities Act or any
successor rule or regulation substantially to the same effect.
"RULE 904" means Rule 904 promulgated the Securities Act or any
successor rule or regulation substantially to the same effect.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
of the Company and Tyco filed pursuant to the provisions of the
Registration Rights Agreement on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"UNRESTRICTED GLOBAL NOTE" means a global Note (other than a
Regulation S Global Note) in the form of Exhibit A-1 attached hereto that
bears the Global Note Legend, and that is deposited with or on behalf of
and registered in the name of the Depositary, representing a series of
Notes that do not bear the Private Placement Legend.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"U.S. PERSON" means a U.S. Person as defined in Rule 902(o) under the
Securities Act.
SECTION 1.3 RULES OF CONSTRUCTION. For all purposes of this Supplemental
Indenture No. 5:
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(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. 5; and
(c) the terms "HEREIN", "HEREOF", "HEREUNDER" and other words of similar
import refer to this Supplemental Indenture No. 5.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 TITLE OF THE SECURITIES. There shall be a series of Securities
designated as the "5.875% Notes due 2004" (the "Notes").
SECTION 2.2 FORM AND DATING.
(a) GENERAL.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibits A-1 or A-2, as applicable, hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of the Indenture Supplement No. 5, and the
Company, Tyco and the Trustee, by their execution and delivery of the Indenture
Supplement No. 5, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of the Indenture Supplement No. 5, the provisions of the
Indenture Supplement No. 5 shall govern and be controlling.
(b) RULE 144A GLOBAL NOTES; DEFINITIVE NOTES.
Notes issued in global form shall be substantially in the form of Exhibits
A-1 or A-2 attached hereto (including the Global Note Legend thereon). The
Company hereby designates The Depository Trust Company as the initial Depositary
for the Global Notes. Notes offered and sold to QIBs shall be issued initially
in the form of the Rule 144A Global Note, which shall be deposited on behalf of
the purchasers of the Notes represented thereby with the Trustee at its New York
office, as custodian for the Depositary, duly executed by the Company and Tyco
and authenticated by the Trustee as hereinafter provided. Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time as conclusively reflected in the books and
records of the Trustee endorsed thereon and that the aggregate principal amount
of outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemption. Any change in
the principal amount of a Global
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Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee as the custodian for the Depositary, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.9 hereof.
Notes offered and sold to Institutional Accredited Investors shall be
issued in definitive form in substantially the form of Exhibit A-1 attached
hereto (but without the Global Note Legend thereon).
(c) REGULATION S GLOBAL NOTES.
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Global Note, which shall be deposited
on behalf of the purchasers of the Notes represented thereby with the Trustee,
at its New York office, as custodian for the Depositary, and registered in the
name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedel Bank, duly executed by
the Company and Tyco and authenticated by the Trustee as hereinafter provided.
During the Restricted Period, interests in the Regulation S Global Note must be
held through Euroclear or Cedel, if the holders are participants in such
systems, or indirectly through organizations that are participants in such
systems.
Following the termination of the Restricted Period, beneficial interests in
the Regulation S Global Note may be held, directly or indirectly, in the account
of any Participant of the Depositary.
(d) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Global Note
that are held by Participants through Euroclear or Cedel Bank.
SECTION 2.3 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT. The aggregate
principal amount of the Notes shall not initially exceed $400,000,000.
SECTION 2.4 PRINCIPAL PAYMENT DATE. Subject to the provisions of Section
2.7 hereof and Articles Four and Twelve of the Indenture, the principal of the
Notes shall be become due and payable in a single installment on November 1,
2004.
SECTION 2.5 INTEREST AND INTEREST RATES. Interest on the Notes shall be
payable semiannually on May 1 and November 1 of each year beginning on May 1,
1999 (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, and no additional
interest shall be paid in respect of such intervening period. The interest rate
borne by the Notes will be 5.875% per annum until the Notes are paid in full
subject, however, to the following provisions. In the event that (i) the
Exchange Offer Registration
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Statement is not filed with the SEC on or prior to the 90th calendar day
following the original issue of the Notes, (ii) the Exchange Offer Registration
Statement has not been declared effective by the SEC on or prior to the 150th
calendar day following the original issue of the Notes or (iii) the Exchange
Offer is not consummated or a Shelf Registration Statement is not declared
effective, in either case, on or prior to the 180th calendar day following the
original issue of the Notes (each such event in clauses (i) through (iii) above,
a "REGISTRATION DEFAULT"), the interest rate borne by the Notes shall be
increased by an amount ("ADDITIONAL INTEREST") equal to an additional one
quarter of one percent (0.25%) per annum upon the occurrence of each
Registration Default, which rate will increase by an additional one quarter of
one percent (0.25%) per annum each 90-day period that such Additional Interest
continues to accrue under any such circumstance, provided that the maximum
aggregate increase in the interest rate will in no event exceed 1.0% per annum;
PROVIDED, HOWEVER, that no Additional Interest shall be payable if the Exchange
Offer Registration Statement is not filed or declared effective or the Exchange
Offer is not consummated as set forth above because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC (it being understood that in any such circumstance the Company shall be
required to file a Shelf Registration Statement and Additional Interest shall be
payable if such Shelf Registration Statement is not declared effective as
provided in clause (iii) above); and PROVIDED FURTHER that Additional Interest
shall only be payable in the case a Shelf Registration Statement is not declared
effective as aforesaid with respect to notes that have the right to be included,
and whose inclusion has been requested, in the Shelf Registration Statement.
Following the cure of all Registration Defaults applicable to the respective
Notes, the accrual of Additional Interest will cease and the interest rate will
revert to 5.875% per annum.
If a Shelf Registration Statement is declared effective but shall
thereafter become unusable by the Holder of Notes for any reason (whether or not
the Company had the right to prevent the Holders from distributing Notes during
the 30 day period described in the Indenture), and the aggregate number of days
in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days, the interest rate borne by the
Notes included in such Shelf Registration Statement will be increased by an
amount ("ADDITIONAL INTEREST") equal to 0.25% per annum for the first 90-day
period (or portion thereof) beginning on the 31st such date that such Shelf
Registration Statement ceases to be usable, which rate shall be increased by an
additional 0.25% per annum at the beginning of each subsequent 90-day period,
provided the maximum aggregate increase in the interest rate will in no event
exceed 1.0% per annum. Upon the Shelf Registration Statement once again becoming
usable, the interest rate borne by the Notes included therein will be reduced to
the original interest rate if the Company is otherwise in compliance with the
Registration Rights Agreement with respect to such Notes at that time.
Additional Interest in accordance with this paragraph shall be computed based
upon the actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is unusable. For all purposes of this Indenture
Supplement No. 5, the term interest shall include "Additional Amounts" and
"Additional Interest".
The interest payable on each Interest Payment Date shall be the amount of
interest accrued from November 2, 1998 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.
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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 the April 15 or October 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.
The Company and Tyco shall notify the Trustee within five Business Days
after each and every date (an "EVENT DATE") on which an event occurs in respect
of which Additional Interest is required to be paid. The obligation to pay
Additional Interest shall be deemed to accrue from and including the day
following the applicable Event Date. Additional Interest shall be paid by
depositing with the Trustee for the benefit of the Holders of the Notes entitled
to receive such Additional Interest, on or before the applicable Interest
Payment Date, immediately available funds in sums sufficient to pay the
Additional interest then due. Additional Interest shall be payable to the Person
otherwise entitled to be paid the interest payable on the Notes on such Interest
Payment Date.
SECTION 2.6 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 2.7 REDEMPTION. The Notes are redeemable, in whole or in part, at
the option of the Company at any time at a redemption price equal to the greater
of (i) 100% of the principal amount of such Notes, and (ii) as determined by the
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such
payment of interest accrued as of the date of redemption) discounted to the date
of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Redemption Treasury Rate plus 15 basis
points plus, in each case, accrued interest thereon to the date of redemption.
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The Notes are also subject to redemption to the extent described in Article
Twelve of the Indenture.
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.
SECTION 2.8 CURRENCY. Principal and interest on the Notes shall be payable
in United States dollars.
SECTION 2.9 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the Depositary; or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee; provided that in no event shall
the Regulation S Global Note be exchanged by the Company for Definitive Notes
prior to the expiration of the Restricted Period. Global Notes may also be,
subject to compliance with the terms of this Section 2.9, exchanged for
Definitive Notes (x) upon the request of any holder of Notes if an Event of
Default has occurred and is continuing for a period of at least 180 days or (y)
in connection with any transfer of an interest in the Global Note to an
Institutional Accredited Investor. Upon the occurrence of any of the preceding
events, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.10 and 2.12 of the Indenture.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES.
The transfer and exchange of beneficial interests in the Global Notes shall
be effected through the Depositary, in accordance with the provisions of the
Indenture and the Applicable Procedures. Transfers of beneficial interests in
the Global Notes also shall require compliance with either subparagraph (i) or
(ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME TYPE OF GLOBAL NOTE.
Beneficial interests in any Rule 144A Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in a
Rule 144A Global Note in accordance with the transfer restrictions set
forth in the Private Placement Legend.
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Beneficial interests in any Regulation S Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in a
Regulation S Global Note; provided, however, that prior to the expiration
of the Restricted Period beneficial interests in the Regulation S Global
Note may only be transferred in accordance with the Applicable Procedures
of Euroclear and Cedel. Beneficial interests in any Unrestricted Global
Note may be transferred to Persons who take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.9(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN
GLOBAL NOTES. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.9(b)(i) above, and, subject to
any other requirement in this Section 2.9, the transferor of such
beneficial interest must deliver to the Registrar either (A) (1) a written
order from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in a Global Note of
another type in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B), subject to Section
2.9(a), (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall
be registered to effect the transfer or exchange; provided that in no event
shall Definitive Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Global Note prior to the
expiration of the Restricted Period. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Notes contained herein and in the Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section 2.9(h) hereof.
(iii) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RULE 144A
GLOBAL NOTE OR A REGULATION S GLOBAL NOTES FOR BENEFICIAL INTERESTS IN AN
UNRESTRICTED GLOBAL NOTE. A beneficial interest in Rule 144A Global Note
may be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
if (x) the exchange or transfer complies with the requirements of Section
2.9(b)(ii) above and (y):
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal or via the
Depositary's book-entry system in a form acceptable to the Trustee
that it is not (1) a broker-dealer, (2) a
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Person participating in the distribution of the Exchange Notes or (3)
a Person who is an affiliate (as defined in Rule 144) of the Company,
and such Letter of Transmittal or book-entry system certification
shall satisfy the requirements of Section 2.9(ii);
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures so
require, an Opinion of Counsel to the effect that the transfer is
permitted, and that upon transfer the Notes will not be restricted,
under the Securities Act, is furnished to the Trustee and Registrar.
If any such transfer is effected at a time when an Unrestricted
Global Note has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.5 of the
Indenture, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests so transferred.
(iv) TRANSFER AND EXCHANGE OF INTERESTS TO AND FROM REGULATION S
GLOBAL NOTES (OTHER THAN AS PROVIDED IN CLAUSE (iii) ABOVE).
(A) TRANSFER AND EXCHANGE OF INTERESTS IN A REGULATION S
GLOBAL NOTE PRIOR TO THE TERMINATION OF THE RESTRICTED PERIOD FOR
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL NOTE. A beneficial
interest in any Regulation S Global Note may be exchanged by any
holder thereof for a beneficial interest in a Rule 144A Global Note
or transferred to a Person who takes delivery thereof in the form of
a beneficial interest in a Rule 144A Global Note, if (x) the exchange
or transfer complies with the requirements of Section 2.9(b)(ii)
above, and (y) the holder of the beneficial interest in the
Regulation S Global Note delivers to the Trustee and the Registrar a
letter in the form of Exhibit B with the certification set forth in
paragraph 1 or Exhibit C with the certification set forth in
paragraph 2(b), as applicable, completed.
(B) TRANSFER AND EXCHANGE OF INTERESTS IN A REGULATION S
GLOBAL NOTE FOLLOWING THE TERMINATION OF THE RESTRICTED PERIOD FOR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE. A beneficial
interest in any Regulation S Global Note following the termination of
the
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Restricted Period may be exchanged by any holder thereof for a
beneficial interest in an Unrestricted Global Note or transferred to
a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, if (x) the exchange or
transfer complies with the requirements of Section 2.9(b)(ii) above
and (y) the holder of the Regulation S Global Note delivers to the
Trustee and the Registrar a letter in the form of Exhibit B with the
certification set forth in paragraph 4(b) or Exhibit C with the
certification set forth in paragraph 1(a), as applicable, completed.
(C) TRANSFER AND EXCHANGE OF INTERESTS IN A RULE 144A GLOBAL
NOTE FOR BENEFICIAL INTERESTS IN A REGULATION S GLOBAL NOTE. A
beneficial interest in any Rule 144A Global Note may be exchanged by
any holder thereof for a beneficial interest in a Regulation S Global
Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in a Regulation S Global Note, if (x)
the exchange or transfer complies with the requirements of Section
2.9(b)(ii) above and (y) the holder of the beneficial interest in the
Rule 144A Global Note delivers to the Trustee and the Registrar a
letter in the form of Exhibit B with the certification set forth in
paragraph 2 or Exhibit C with the certification set forth in
paragraph 2(b), as applicable, completed.
(c) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL NOTES FOR
DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RULE 144A GLOBAL NOTES TO RESTRICTED
DEFINITIVE NOTES. If any holder of a beneficial interest in a Rule 144A
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note in the
circumstances set forth in Section 2.9(a) hereof, such Definitive Note
shall be subject to all restrictions on transfer contained therein and
shall be issued, upon receipt by each of the Trustee and the Registrar of
the following documentation:
(A) if the holder of a beneficial interest in a Rule 144A
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, Exhibit C with the certification set
forth in paragraph (2)(a) completed;
(B) if such beneficial interest is being transferred in
accordance with Rule 144A under the Securities Act, a letter in the
form of Exhibit B with the certification set forth in paragraph 1
completed;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a letter in the form of
Exhibit B with the certification set forth in paragraph 2 completed;
or
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(D) if any such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act, a letter in the
form of Exhibit B with the certification set forth in paragraph 3(d)
completed.
(ii) intentionally omitted.
(iii) BENEFICIAL INTERESTS IN RULE 144A GLOBAL NOTES OR REGULATION S
GLOBAL NOTES TO UNRESTRICTED DEFINITIVE NOTES. Subject to Section 2.9(a), a
holder of a beneficial interest in a Rule 144A Global Note or Regulation S
Global Note may exchange such beneficial interest for an Unrestricted
Definitive Note or may transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note only
if such exchange or transfer is in accordance with the Applicable
Procedures and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures so
require, an Opinion of Counsel to the effect that the transfer is
permitted, and that upon transfer the Notes will not be restricted,
under the Securities Act, is furnished to the Trustee and Registrar.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A holder of a beneficial interest in an
Unrestricted Global Note may, in the circumstances described in Section
2.9(a), exchange such beneficial interest for an Unrestricted Definitive
Note or transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note.
Any transfer pursuant to this Section 2.9(c) shall satisfy the
requirements of Section 2.9(b)(ii). In any such case, the Trustee shall
cause the aggregate principal
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amount of the applicable Global Note to be reduced accordingly pursuant to
Section 2.9(h) hereof, and the Company shall execute and the Trustee, upon
receipt of an Authentication Order in accordance with Section 2.5 of the
Indenture, shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Restricted Definitive Note issued in exchange for a beneficial interest in
a Global Note pursuant to this Section 2.9(c) shall be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the Persons
in whose names such Notes are so registered.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS IN
GLOBAL NOTES.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN RULE 144A
GLOBAL NOTES. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Rule 144A Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Rule 144A Global Note,
then, upon receipt by each of the Trustee and the Registrar of a letter in
the form of Exhibit B with the certification set forth in paragraph 1 or
Exhibit C with the certification set forth in paragraph 2(b), as
applicable, completed, the Trustee shall cancel the Restricted Definitive
Note and increase or cause to be increased the aggregate principal amount
of the appropriate Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
or via the Depositary's book-entry system in a form acceptable to the
Trustee, that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
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(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures so
require, an Opinion of Counsel to the effect that the transfer is
permitted, and that upon transfer the Notes will not be restricted,
under the Securities Act, is furnished to the Trustee and Registrar.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note at any
time if permitted by the Applicable Procedures and applicable law. Upon
receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Note and increase or cause to
be increased the aggregate principal amount of one of the Unrestricted
Global Notes.
(iv) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
REGULATION S GLOBAL NOTES. A beneficial interest in any Restricted
Definitive Note may be exchanged by any holder thereof who is a non-U.S.
Person for a beneficial interest in a Regulation S Global Note or
transferred to a Non U.S. Person who takes delivery thereof in the form of
a beneficial interest in a Regulation S Global Note, if (x) the holder of
the Restricted Definitive Note delivers to the Trustee and the Registrar a
letter in the form of Exhibit B with the certification set forth in
paragraph 2 or Exhibit C with the certification set forth in paragraph
2(b), as applicable, completed and (y) if the Trustee and the Registrar so
request or if the Applicable Procedures so require, an Opinion of Counsel
in form reasonably acceptable to the Trustee and the Registrar is furnished
to the Trustee and the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act.
If any such exchange or transfer from a Definitive Note to a
beneficial interest in a Global Note is effected at a time when a Global
Note of the appropriate type has not yet been issued, the Company shall
issue and, upon receipt of an Authentication Order in accordance with
Section 5 of the Indenture the Trustee shall authenticate one or more
Global Notes in an aggregate principal amount equal to the principal amount
of Definitive Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.9(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Xxxxxx or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.9(e).
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(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE NOTES. Any
restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a letter in the form of Exhibit B with
certification set forth in paragraph 1 completed,
(B) if the transfer will be made to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or 904 under the
Securities, then the transferor must deliver a letter in the form of
Exhibit B with the certification set forth in paragraph 2 completed;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a letter in the form of Exhibit B
with the appropriate certification set forth in paragraph 3
completed, as well as an Opinion of Counsel in form and substance
acceptable to the Trustee.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES.
Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
or via the Depositary's book-entry system in a form acceptable to the
Trustee, that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures so
require, an Opinion of Counsel
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to the effect that the transfer is permitted, and that upon transfer
the Notes will not be restricted, under the Securities Act, is
furnished to the Trustee and Registrar.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES.
A Holder of Unrestricted Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note. Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) EXCHANGE OFFER; SHELF REGISTRATION STATEMENT
(i) Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.5 of the Indenture,
the Trustee shall authenticate (x) one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of the
beneficial interests in the Rule 144A Global Notes and Regulation S Global
Notes tendered for acceptance by Persons that certify in the applicable
Letters of Transmittal that (A) they are not broker-dealers, (B) they are
not participating in a distribution of the Exchange Notes and (C) they are
not affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (y) Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer. Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Rule 144A Global Notes and/or Regulation S Global
Notes to be reduced accordingly, and the Company shall execute and the
Trustee shall, upon receipt of an Authentication Order in accordance with
Section 2.5 of the Indenture, authenticate and deliver to the Persons
designated by the Holders of the Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
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(ii) Following the effectiveness of a Shelf Registration Statement
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.5, of the Indenture the Trustee shall
authenticate from time to time (x) one or more Unrestricted Global Notes,
or, if there shall be at the time one or more Unrestricted Global Notes
outstanding and such increase can be effected in accordance with Applicable
Procedures, the Trustee shall increase or cause to be increased the
aggregate principal amount thereof, in each case in an aggregate principal
amount equal to the principal amount of the beneficial interests in the
Global Notes sold by Persons that certify as to the consummation of such
sale under the Shelf Registration Statement in a manner acceptable to the
Trustee and the Company and (y) Unrestricted Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes sold by Persons that certify as to the consummation of
such sale under the Shelf Registration Statement in a manner acceptable to
the Trustee and the Company. Concurrently with the issuance of such
Unrestricted Global Notes, the Trustee shall cause the aggregate principal
amount of the applicable Rule 144A Global Notes and/or the Regulation S
Global Notes to be reduced accordingly, and the Company shall execute and
the Trustee shall, upon receipt of an Authentication Order in accordance
with Section 2.5 of the Indenture, authenticate and deliver to the Persons
designated by the Holders of Restricted Definitive Notes so sold
Unrestricted Definitive Notes in the appropriate principal amount.
(g) LEGENDS.
The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under the Indenture unless specifically stated otherwise
in the applicable provisions of the Indenture.
(i) PRIVATE PLACEMENT LEGEND. Except as permitted by subparagraph (B)
below, each Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER: REPRESENTS THAT (1) IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT) OR (C) NOT A U.S. PERSON AND IS ACQUIRING THE NOTE
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE
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TRANSFER THE NOTE EVIDENCED HEREBY EXCEPT TO (A) THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF NEW YORK,
AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY (A FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR A SUCCESSOR TRUSTEE, AS
APPLICABLE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OR ANY OTHER APPLICABLE JURISDICTION; AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED
HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS
TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT."
(B) Notwithstanding the foregoing, any Note which is (i) a
Regulation S Note (and any Note issued in exchange therefor or
substitution thereof after the Restricted Period), (ii) a Note which
has been exchanged or transferred pursuant to the Exchange
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Offer Registration Statement or the Shelf Registration Statement, or
(iii) a Note which has been transferred in accordance with Rule 144,
provided that in such case an Opinion of Counsel is delivered which
states that the Note does not have to bear the Private Placement
Legend in the cases where such opinion is required under this
Indenture, shall not bear the Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN CERTAIN CIRCUMSTANCES IN THE SUPPLEMENTAL
INDENTURE NO. 5, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(iii) REGULATION S GLOBAL NOTE LEGEND. The Regulation S Global Note
shall bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). DURING THE RESTRICTED
PERIOD, INTERESTS IN THIS NOTE MAY ONLY BE HELD THROUGH EUROCLEAR AND
CEDEL."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES.
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 of the Indenture. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal
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amount of Notes represented by such Global Note shall be reduced accordingly and
an endorsement shall be made on such Global Note by the Trustee or by the
Depositary to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary to reflect such increase.
SECTION 2.10 DEFEASANCE AND COVENANT DEFEASANCE. The provisions of Article
Nine of the Indenture shall apply to the Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 RATIFICATION. The Indenture, as supplemented and amended by
this Supplemental Indenture No. 5, is in all respects hereby adopted, ratified
and confirmed.
SECTION 3.2 COUNTERPARTS. This Supplemental Indenture No. 5 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 AMENDMENTS. This Supplemental Indenture No. 5 may be amended by
the Company and Tyco without the consent of any holder of the Notes in order for
the restrictions on transfer contained herein to be in compliance with
applicable law or the Applicable Procedures.
SECTION 3.4 APPLICABLE PROCEDURES. Notwithstanding anything else herein,
the Company shall not be required to permit a transfer to a global note that is
not permitted by the Applicable Procedures.
SECTION 3.5 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE NO. 5 AND EACH NOTE
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. 5 to be duly executed as of the day and year first written above.
TYCO INTERNATIONAL GROUP S.A.
By: _________________________
Name:
Title:
TYCO INTERNATIONAL LTD.
By: _________________________
Name:
Title:
THE BANK OF NEW YORK, Trustee
By: _________________________
Name:
Title:
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Tyco International Group S.A.
[__________________]
The Bank of New York
[__________________]
Re: 5.875% Notes due 2004
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of June 9, 1998, and
the Supplemental Indenture No. 5 dated November 2, 1998 (collectively, the
"Indenture") among Tyco International Group S.A., Tyco International Ltd. and
The Bank of New York as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [___] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any
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applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
2. [___] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S GLOBAL NOTE, OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Temporary Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
3. [__] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE RESTRICTED DEFINITIVE NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [__] such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
(b) [__] such Transfer is being effected to the Company or a subsidiary
thereof;
or
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(c) [__] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [__] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by a certificate
executed by the Transferee in the form of Exhibit D to the Indenture.
4. [ ] Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the
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Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_______________________________
[Insert Name of Transferor]
By:
_______________________________
Name:
Title:
Dated: ______________ __, ____.
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _____), or
(ii) [ ] Regulation S Global Note (CUSIP _____).
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _____), or
(ii) [ ] Regulation S Global Note (CUSIP _____), or
(iii) [ ] Unrestricted Global Note (CUSIP _____); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note, in accordance with the terms of the
Indenture.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Tyco International Group S.A.
[_________________]
The Bank of New York
[_________________]
Re: 5.875% Notes due 2004
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of June 9, 1998, and
the Supplemental Indenture No. 5 dated November 2, 1998 (collectively, the
"Indenture") among Tyco International Group S.A., Tyco International Ltd. and
the Bank of New York.
____________, (the "Owner") owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RULE 144A GLOBAL NOTE OR REGULATION S GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE
NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities
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Act and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RULE
144A GLOBAL NOTES OR REGULATION S GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES
OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RULE 144A GLOBAL
NOTES OR REGULATION S GLOBAL NOTES TO RESTRICTED DEFINITIVE NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Rule 144A Global Note
or a Regulation S Global Notes for a Restricted Definitive Note with an equal
principal amount, the Owner hereby certifies that the Restricted Definitive Note
is being acquired for the Owner's own account without transfer. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS TO BENEFICIAL INTEREST IN A RULE 144A GLOBAL
NOTE OR A REGULATION S GLOBAL NOTE. In connection with the Exchange of the
Owner's Note for a beneficial interest in the [CHECK ONE] [ ] 144A Global Note,
[ ] Regulation S Global Note, with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Rule 144A Global Notes or
Regulation S Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Rule 144A Global Note or Regulation S Global Notes and
in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
___________________________________
[Insert Name of Owner]
By:
___________________________________
Name:
Title:
Dated: __________________ __, ____.
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Tyco International Group S.A.
[_________________]
The Bank of New York
[_________________]
Re: 5.875% Notes due 2004
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of June 9, 1998, and
the Supplemental Indenture No. 5 dated November 2, 1998 (collectively, the
Indenture") among Tyco International Group S.A., Tyco International Ltd. And The
Bank of New York as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1993, as
amended (the "Securities Act")),
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32
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Notes for investment purposes
and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or other applicable securities
laws and we have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand and acknowledge that the Notes have not been registered
under the Securities Act, or any other applicable securities law and may not be
offered, sold or otherwise transferred except in compliance with the
registration requirements of the Securities Act or any other applicable
securities law, or pursuant to an exemption therefrom, and in each case in
compliance with the conditions for transfer set forth below. We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes
to offer, sell or otherwise transfer such Notes prior to the date which is two
years after the later of the date of original issue and the last date on which
the Company or any affiliate of the Company was the owner of such Notes (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) for so long as the Notes are eligible
for resale pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "Qualified Institutional Buyer" within the meaning of
Rule 144A (a "QIB") that purchases for its own account or for the account of a
QIB and to whom notice is given that the transfer is being made in reliance on
Rule 144A, (d) pursuant to offers and sales to non-U.S. persons that occur
outside the United States within the meaning of Regulation S under the
Securities Act, (e) to an institutional "accredited investor" within the meaning
of subparagraphs (a)(1), (a)(2), (a)(3) or (a)(7) or Rule 501 under the
Securities Act that is acquiring the Notes for its own account or for the
account of such an institutional "accredited investor" for the investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and to compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (e) above
prior to the Resale Restriction Termination Date, the transferor shall deliver
to the trustee (the "Trustee") under the Indenture pursuant to which the Notes
are issued a letter from the transferee substantially in the form of this letter
or as acceptable to the Trustee, which shall provide, among other things, that
the transferee is a person or entity as defined in paragraph 1 of this letter
and that is acquiring such Notes for investment purposes and not for
distribution violation of the Securities Act. We acknowledge that the Company
and the Trustee reserve the right prior to any offer, sale or other transfer of
the Notes pursuant to clauses (d), (e) and (f) above prior to the Resale
Restriction Termination Date to require the delivery of any opinion of counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
3. We are acquiring the Notes purchased by us for our own account or for
one or more accounts as to each of which we exercise sole investment discretion.
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4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By: (Name of Purchaser)
Date:
____________________________________
[Insert Name of Accredited Investor]
By:
____________________________________
Name:
Title:
Dated: _________________ __, ____.
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TYCO INTERNATIONAL GROUP S.A.
5.875% NOTE DUE 2004
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN CERTAIN CIRCUMSTANCES DESCRIBED IN THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY
STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:
REPRESENTS THAT (1) IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) OR (C) NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THE NOTE EVIDENCED HEREBY EXCEPT TO (A) THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OR ANY OTHER APPLICABLE JURISDICTION; AND (3) AGREES THAT IT
1
35
XXXX DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED XXXXXX IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFER IS
PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
2
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TYCO INTERNATIONAL GROUP S.A.
5.875% NOTE DUE 2004
No. 1
$200,000,000 CUSIP: 902118 AE 8
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 Two Hundred Million Dollars on November 1, 2004, 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
semiannually on May 1 and November 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 May 1, 1999, 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 November 2, 1998 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.
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 the April 15 or
October 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.
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37
All references in the Notes (and related Guarantees) to interest shall
include any Additional Interest or Additional Amounts.
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.
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38
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this instrument
to be signed by its duly authorized officers.
Dated: November 2, 1998
TYCO INTERNATIONAL GROUP S.A.
By:________________________________
Title:
By:________________________________
Title:
5
39
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: __________________________
Authorized Signatory
6
40
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 Security 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 on, 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 or Additional Interest.
Dated: November 2, 1998
TYCO INTERNATIONAL LTD.
By: ______________________________________
Title:
7
41
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTES DUE 2004
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 5.875%
Notes due 2004 of the Issuer, initially limited in aggregate principal amount to
$400,000,000, 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. 5, dated as of November 2, 1998 (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 (or the related Guarantee)
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
8
42
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 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 or 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 hereof, 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. This Note may be redeemed, in whole or in part, at the
option of the Issuer at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of this Note, and (ii) as determined by the
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such
payments of interest accrued as of the date of redemption) discounted to the
date of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Redemption Treasury Rate plus 25 basis
points plus, in each case, accrued interest thereon to the date of redemption.
This Note is also subject to redemption to the extent provided in Article Twelve
of the Indenture.
"ADJUSTED REDEMPTION TREASURY RATE" means, with respect to any
redemption date, the annual rate equal to the semiannual equivalent yield to
maturity or interpolated (on a 30/360 day count basis) yield to maturity of the
Comparable Redemption Treasury Issue, assuming a price for the Comparable
Redemption Treasury Issue (expressed as a percentage of
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43
its principal amount) equal to the Comparable Redemption Treasury Price for such
redemption date.
"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.
"COMPARABLE REDEMPTION TREASURY ISSUE" means the United States
Treasury security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the Notes to be redeemed that will be
utilized at the time of selection and in accordance with customary financial
practice in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
"COMPARABLE REDEMPTION TREASURY PRICE" means, with respect to any
redemption date, (i) the average of the Redemption Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest such
Redemption Reference Treasury Dealer Quotations (unless there is more than one
highest or lowest quotation, in which case only one such highest and/or lowest
quotation shall be excluded), or (ii) if the Quotation Agent obtains fewer than
four such Redemption Reference Treasury Dealer Quotations, the average of all
such Redemption Reference Treasury Dealer Quotations.
"QUOTATION AGENT" means a Redemption Reference Treasury Dealer
appointed as such agent by the Company.
"REDEMPTION REFERENCE TREASURY DEALER" means each of Xxxxxx Brothers
Inc. and four other primary U.S. Government securities dealers in The City of
New York selected by the Company.
"REDEMPTION REFERENCE TREASURY DEALER QUOTATIONS" means, with
respect to each Redemption Reference Treasury Dealer and any redemption date,
the offer price for the Comparable Redemption Treasury Issue (expressed in each
case as a percentage of its principal amount) for settlement on the redemption
date quoted in writing to the Quotation Agent by such Redemption Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such redemption date.
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
10
44
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
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 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.
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45
11. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Notes other than Holders of Unrestricted Global Notes
and Holders of Unrestricted Definitive Notes shall have all the rights set forth
in the Registration Rights Agreement, dated as of November 2, 1998, among the
Issuer, Tyco International Ltd. and the parties named on the signature pages
thereof.
12. Governing Law. The laws of the State of New York govern the Indenture
and this Note.
12
46
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.
13
47
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in the Global Note, have been
made:
Amount of Amount of
decrease in increase in Principal Amount of this Global Signature of Authorized
Date of Principal Amount Principal Amount Note following such decrease (or Officer of Trustee or Note
Exchange of this Global Note of this Global Note increase) Custodian
-------- ------------------- ------------------- -------------------------------- --------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
* This Schedule may be used by the Trustee in respect of a Global Note, and, if
so used, shall be deemed a part thereof for all purposes.
14
48
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTE DUE 2004
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN CERTAIN CIRCUMSTANCES DESCRIBED IN THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY
STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:
REPRESENTS THAT (1) IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) OR (C) NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THE NOTE EVIDENCED HEREBY EXCEPT TO (A) THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
OR (F) PURSUANT TO
1
49
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR ANY OTHER
APPLICABLE JURISDICTION; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D)
OR (E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF
NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE
TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
2
50
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTE DUE 2004
No. 2
$200,000,000 CUSIP: 902118 AE 8
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 Two Hundred Million Dollars on November 1, 2004, 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
semiannually on May 1 and November 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 May 1, 1999, 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 November 2, 1998 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.
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 the April 15 or
October 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.
3
51
All references in the Notes (and related Guarantees) to interest shall
include any Additional Interest or Additonal Amounts.
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.
4
52
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this instrument
to be signed by its duly authorized officers.
Dated: November 2, 1998
TYCO INTERNATIONAL GROUP S.A.
By:________________________________
Title:
By:________________________________
Title:
5
53
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: __________________________
Authorized Signatory
6
54
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 Security 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 on, 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 or Additional Interest.
Dated: November 2, 1998
TYCO INTERNATIONAL LTD.
By: ______________________________________
Title:
7
55
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTES DUE 2004
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 5.875%
Notes due 2004 of the Issuer, initially limited in aggregate principal amount to
$400,000,000, 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. 5, dated as of November 2, 1998 (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 (or the related Guarantee)
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
8
56
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 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 or 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 hereof, 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. This Note may be redeemed, in whole or in part, at the
option of the Issuer at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of this Note, and (ii) as determined by the
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such
payments of interest accrued as of the date of redemption) discounted to the
date of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Redemption Treasury Rate plus 25 basis
points plus, in each case, accrued interest thereon to the date of redemption.
This Note is also subject to redemption to the extent provided in Article Twelve
of the Indenture.
"ADJUSTED REDEMPTION TREASURY RATE" means, with respect to any
redemption date, the annual rate equal to the semiannual equivalent yield to
maturity or interpolated (on a 30/360 day count basis) yield to maturity of the
Comparable Redemption Treasury Issue, assuming a price for the Comparable
Redemption Treasury Issue (expressed as a percentage of
9
57
its principal amount) equal to the Comparable Redemption Treasury Price for such
redemption date.
"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.
"COMPARABLE REDEMPTION TREASURY ISSUE" means the United States
Treasury security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the Notes to be redeemed that will be
utilized at the time of selection and in accordance with customary financial
practice in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
"COMPARABLE REDEMPTION TREASURY PRICE" means, with respect to any
redemption date, (i) the average of the Redemption Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest such
Redemption Reference Treasury Dealer Quotations (unless there is more than one
highest or lowest quotation, in which case only one such highest and/or lowest
quotation shall be excluded), or (ii) if the Quotation Agent obtains fewer than
four such Redemption Reference Treasury Dealer Quotations, the average of all
such Redemption Reference Treasury Dealer Quotations.
"QUOTATION AGENT" means a Redemption Reference Treasury Dealer
appointed as such agent by the Company.
"REDEMPTION REFERENCE TREASURY DEALER" means each of Xxxxxx Brothers
Inc. and four other primary U.S. Government securities dealers in The City of
New York selected by the Company.
"REDEMPTION REFERENCE TREASURY DEALER QUOTATIONS" means, with
respect to each Redemption Reference Treasury Dealer and any redemption date,
the offer price for the Comparable Redemption Treasury Issue (expressed in each
case as a percentage of its principal amount) for settlement on the redemption
date quoted in writing to the Quotation Agent by such Redemption Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such redemption date.
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
10
58
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
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 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
59
11. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Notes other than Holders of Unrestricted Global Notes
and Holders of Unrestricted Definitive Notes shall have all the rights set forth
in the Registration Rights Agreement, dated as of November 2, 1998, among the
Issuer, Tyco International Ltd. and the parties named on the signature pages
thereof.
12. Governing Law. The laws of the State of New York govern the Indenture
and this Note.
12
60
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.
13
61
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in the Global Note, have been
made:
Amount of Amount of
decrease in increase in Principal Amount of this Global Signature of Authorized
Date of Principal Amount Principal Amount Note following such decrease (or Officer of Trustee or Note
Exchange of this Global Note of this Global Note increase) Custodian
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* This Schedule may be used by the Trustee in respect of a Global Note, and, if
so used, shall be deemed a part thereof for all purposes.
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62
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTE DUE 2004
THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED
IN THE INDENTURE (AS DEFINED HEREIN). DURING THE RESTRICTED PERIOD, INTERESTS IN
THIS NOTE MAY ONLY BE HELD THROUGH EUROCLEAR AND CEDEL.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.9 OF SUPPLEMENTAL INDENTURE NO.
5, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
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63
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTE DUE 2004
No. 3
$0 CUSIP: L93727AAO
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 Zero Dollars on November 1, 2004, 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
semiannually on May 1 and November 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 May 1, 1999, 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 November 2, 1998 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.
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 the April 15 or
October 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.
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All references in the Notes (and related Guarantees) to interest shall
include any Additional Interest or Additional Amounts.
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.
3
65
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this
instrument to be signed by its duly authorized officers.
Dated: November 2, 1998
TYCO INTERNATIONAL GROUP S.A.
By:________________________________
Title:
By:________________________________
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.
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 Security 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 on, 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 or Additional Interest.
Dated: November 2, 1998
TYCO INTERNATIONAL LTD.
By: _______________________________________
Title:
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REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTES DUE 2004
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 5.875%
Notes due 2004 of the Issuer, initially limited in aggregate principal amount to
$400,000,000, 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. 5, dated as of November 2, 1998 (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 (or the related Guarantee)
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
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69
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 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 or 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 hereof, 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. This Note may be redeemed, in whole or in part, at the
option of the Issuer at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of this Note, and (ii) as determined by the
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such
payments of interest accrued as of the date of redemption) discounted to the
date of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Redemption Treasury Rate plus 25 basis
points plus, in each case, accrued interest thereon to the date of redemption.
This Note is also subject to redemption to the extent provided in Article Twelve
of the Indenture.
"ADJUSTED REDEMPTION TREASURY RATE" means, with respect to any
redemption date, the annual rate equal to the semiannual equivalent yield to
maturity or interpolated (on a 30/360 day count basis) yield to maturity of the
Comparable Redemption Treasury Issue, assuming a price for the Comparable
Redemption Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Redemption Treasury Price for such redemption date.
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70
"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.
"COMPARABLE REDEMPTION TREASURY ISSUE" means the United States
Treasury security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the Notes to be redeemed that will be
utilized at the time of selection and in accordance with customary financial
practice in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
"COMPARABLE REDEMPTION TREASURY PRICE" means, with respect to any
redemption date, (i) the average of the Redemption Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest such
Redemption Reference Treasury Dealer Quotations (unless there is more than one
highest or lowest quotation, in which case only one such highest and/or lowest
quotation shall be excluded), or (ii) if the Quotation Agent obtains fewer than
four such Redemption Reference Treasury Dealer Quotations, the average of all
such Redemption Reference Treasury Dealer Quotations.
"QUOTATION AGENT" means a Redemption Reference Treasury Dealer
appointed as such agent by the Company.
"REDEMPTION REFERENCE TREASURY DEALER" means each of Xxxxxx Brothers
Inc. and four other primary U.S. Government securities dealers in The City of
New York selected by the Company.
"REDEMPTION REFERENCE TREASURY DEALER QUOTATIONS" means, with
respect to each Redemption Reference Treasury Dealer and any redemption date,
the offer price for the Comparable Redemption Treasury Issue (expressed in each
case as a percentage of its principal amount) for settlement on the redemption
date quoted in writing to the Quotation Agent by such Redemption Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such redemption date.
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.
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71
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
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 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. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Notes other than Holders of Unrestricted Global Notes
and Holders of Unrestricted Definitive Notes shall have all the rights set forth
in the Registration Rights Agreement, dated as of
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72
November 2, 1998, among the Issuer, Tyco International Ltd. and the parties
named on the signature pages thereof.
12. Governing Law. The laws of the State of New York govern the Indenture
and this Note.
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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
---------------------------------------------------------------------------
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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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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in the Global Note, have been
made:
Amount of Amount of
decrease in increase in Principal Amount of this Global Signature of Authorized
Date of Principal Amount Principal Amount Note following such decrease (or Officer of Trustee or Note
Exchange of this Global Note of this Global Note increase) Custodian
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* This Schedule may be used by the Trustee in respect of a Global Note, and, if
so used, shall be deemed a part thereof for all purposes.
13
