EXHIBIT 4.1
DRAFT
4/27/98
--------------------------------------------------------------------------------
TYCO INTERNATIONAL GROUP S.A.,
as Issuer
AND
TYCO INTERNATIONAL LTD.,
as Guarantor
AND
THE BANK OF NEW YORK,
as Trustee
Indenture
Dated as of , 1998
--------- --
---------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE ONE....................................................................1
SECTION 1.1 Certain Terms Defined........................................1
ARTICLE TWO....................................................................7
SECTION 2.1 Forms Generally..............................................7
SECTION 2.2 Form of Guarantee............................................7
SECTION 2.3 Form of Trustee's Certificate of Authentication..............8
SECTION 2.4 Amount Unlimited; Issuable in Series.........................8
SECTION 2.5 Authentication and Delivery of Securities....................9
SECTION 2.6 Execution of Securities.....................................10
SECTION 2.7 Certificate of Authentication...............................11
SECTION 2.8 Denomination and Date of Securities;
Payments of Interest.......................................11
SECTION 2.9 Registration, Transfer and Exchange.........................11
SECTION 2.10 Mutilated, Defaced, Destroyed,
Lost and Stolen Securities.................................12
SECTION 2.11 Cancellation of Securities; Destruction Thereof.............13
SECTION 2.12 Temporary Securities........................................13
SECTION 2.13 Securities Issuable in the Form of a Global Security........14
ARTICLE THREE.................................................................15
SECTION 3.1 Payment of Principal and Interest...........................15
SECTION 3.2 Offices for Payments, etc...................................15
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee..........16
SECTION 3.4 Paying Agent................................................16
SECTION 3.5 Certificate of the Issuer and the Guarantors................16
SECTION 3.6 Securityholders Lists.......................................17
SECTION 3.7 Reports by the Issuer and Tyco..............................17
SECTION 3.8 Reports by the Trustee......................................17
SECTION 3.9 Limitations on Liens........................................17
SECTION 3.10 Limitation on Sale and Lease-Back Transactions..............19
SECTION 3.11 Limitation on Indebtedness of Subsidiaries..................20
SECTION 3.12 Notice to Trustee...........................................20
ARTICLE FOUR..................................................................20
SECTION 4.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default..........................................21
SECTION 4.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt.....................................23
SECTION 4.3 Application of Proceeds.....................................25
SECTION 4.4 Suits for Enforcement.......................................26
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings.........26
SECTION 4.6 Limitations on Suits by Securityholders.....................26
SECTION 4.7 Unconditional Right of Securityholders to Institute
Certain Suits..............................................27
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default......................................27
SECTION 4.9 Control by Securityholders..................................27
i
SECTION 4.10 Waiver of Past Defaults.....................................28
SECTION 4.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances..........................28
SECTION 4.12 Right of Court to Require Filing of Undertaking
to Pay Costs...............................................29
ARTICLE FIVE..................................................................29
SECTION 5.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default..................................29
SECTION 5.2 Certain Rights of the Trustee...............................30
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof...........31
SECTION 5.4 Trustee and Agents May Hold Securities;
Collections, etc...........................................31
SECTION 5.5 Moneys Held by Trustee......................................31
SECTION 5.6 Compensation and Indemnification of Trustee and
Its Prior Claim............................................32
SECTION 5.7 Right of Trustee to Rely on Officers'
Certificate, etc...........................................32
SECTION 5.8 Persons Eligible for Appointment as Trustee.................32
SECTION 5.9 Resignation and Removal; Appointment of Successor
Trustee....................................................32
SECTION 5.10 Acceptance of Appointment by Successor Trustee..............34
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business of Trustee.....................................34
ARTICLE SIX...................................................................35
SECTION 6.1 Evidence of Action Taken by Securityholders.................35
SECTION 6.2 Proof of Execution of Instruments and of Holding
of Securities; Record Date.................................35
SECTION 6.3 Holders to be Treated as Owners.............................35
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding...........36
SECTION 6.5 Right of Revocation of Action Taken.........................36
ARTICLE SEVEN.................................................................37
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders............................................37
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders............................................38
SECTION 7.3 Effect of Supplemental Indenture............................39
SECTION 7.4 Documents to Be Given to Trustee............................39
SECTION 7.5 Notation on Securities in Respect of
Supplemental Indentures....................................39
ARTICLE EIGHT.................................................................39
SECTION 8.1 Issuer and Guarantors May Consolidate, etc.,
on Certain Terms...........................................39
SECTION 8.2 Successor Corporation Substituted...........................39
SECTION 8.3 Opinion of Counsel to Trustee...............................40
SECTION 8.4 Exception Applicable to Certain Guarantors..................40
ARTICLE NINE..................................................................40
SECTION 9.2 Issuer's Option to Effect Defeasance or
Covenant Defeasance........................................41
ii
SECTION 9.3 Defeasance and Discharge....................................41
SECTION 9.4 Covenant Defeasance.........................................42
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance.............42
SECTION 9.6 Application by Trustee of Funds Deposited for
Payment of Securities......................................44
SECTION 9.7 Repayment of Moneys Held by Paying Agent....................44
SECTION 9.8 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years..............................44
SECTION 9.9 Indemnity for Direct Obligations of the
United States..............................................44
SECTION 9.10 Reinstatement...............................................44
ARTICLE TEN...................................................................45
SECTION 10.1 Incorporators, Shareholders, Officers and
Directors of Issuer and Guarantors Exempt from
Individual Liability.......................................45
SECTION 10.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders................................45
SECTION 10.3 Successors and Assigns of Issuer and Guarantors
Bound by Indenture.........................................45
SECTION 10.4 Notices and Demands on Issuer, Guarantors Trustee
and Securityholders........................................45
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein.........................46
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays.............47
SECTION 10.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939......................................47
SECTION 10.8 New York Law to Govern......................................47
SECTION 10.8 Consent to Jurisdiction and Service of Process..............47
SECTION 10.8 Judgement Currency..........................................48
SECTION 10.9 Counterparts................................................48
SECTION 10.10 Effect of Headings..........................................8
ARTICLE ELEVEN................................................................49
SECTION 11.1 Applicability of Article....................................49
SECTION 11.2 Notice of Redemption; Partial Redemptions...................49
SECTION 11.3 Payment of Securities Called for Redemption.................50
SECTION 11.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption...............................50
SECTION 11.5 Mandatory and Optional Sinking Funds........................50
ARTICLE TWELVE................................................................52
SECTION 12.1 Redemption Upon Changes in Withholding Taxes................52
SECTION 12.2 Payment of Additional Amounts...............................53
ARTICLE THIRTEEN..............................................................54
SECTION 13.1 Guarantee...................................................54
SECTION 13.2 Execution and Delivery of Guarantees........................56
SECTION 13.3 Release of Guarantees.......................................57
iii
SECTION 13.4 Additional Guarantors.......................................57
iv
THIS INDENTURE, dated as of ________ __, 1998, among TYCO
INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), TYCO
INTERNATIONAL LTD., a Bermuda company ("Tyco"), and THE BANK OF NEW YORK, a New
York banking corporation (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of its
unsecured debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, and the Issuer has duly authorized the execution and
delivery of this Indenture;
WHEREAS, Tyco has duly authorized the execution and delivery of this
Indenture and deems it appropriate from time to time to issue its guarantees of
the Securities on the terms and substantially in the form herein provided; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
holders thereof, the Issuer, Tyco and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939 or the definitions
of which in the Securities Act of 1933 are referred to in the Trust Indenture
Act of 1939, including terms defined therein by reference to the Securities Act
of 1933 (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the terms "generally accepted accounting principles"
means such accounting principles as are generally accepted in the United States
at the time of any computation. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at the
time such Person becomes a Restricted Subsidiary or (ii) assumed in connection
with the acquisition of assets by such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary or such acquisition, as the case
1
may be.
"Affiliate" means, with respect to any specified Person: (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person; (ii) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Capital
Stock or any officer or director of any such specified Person or other Person;
(iii) any other Person 10% or more of the Voting Stock of which is beneficially
owned or held directly or indirectly by such specified Person. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Attributable Debt" means in connection with a Sale and Lease-Back
Transaction, as of any particular time, the aggregate of present values
(discounted at a rate per annum equal to the average interest borne by all
outstanding Debt Securities (or, if set forth in a resolution of the Board of
Directors or a supplemental indenture pursuant to Section 2.4 with respect to
one or more series, the Outstanding Securities of such series) determined on a
weighted average basis and compounded semi-annually) of the obligations of the
Issuer or any Restricted Subsidiary for net rental payments during the remaining
term of the applicable lease (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). The term "net rental
payments" under any lease of any period shall mean the sum of the rental and
other payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, reconstruction, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales,
maintenance and repairs, reconstruction, insurance, taxes, assessments, water
rates or similar charges.
"Board of Directors" means either the Board of Directors of the Issuer,
Tyco or any other Guarantor, as the case may be, or any committee of such Board
of Directors duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the city
(or in any of the cities, if more than one) in which amounts are payable, as
specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights in or other equivalents (however designated) of such
Person's capital stock, other equity interests whether now outstanding or issued
after the date of this Indenture, partnership interests, (whether general or
limited), any other interest or participation that confers on a Person that
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person and any rights (other than debt securities
convertible into Capital Stock), warrants or options exchangeable for or
convertible into such Capital Stock.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act of 1939, then the body performing such duties on such date.
"Consolidated Net Worth" means, at any date, the total assets less the
total
2
liabilities, in each case appearing on the most recently prepared
consolidated balance sheet of the Issuer and its subsidiaries as of the end of a
fiscal quarter of the Issuer, prepared in accordance with generally accepted
accounting principles as in effect on the date of calculation.
"Consolidated Tangible Assets" means, at any date, the total assets less
all intangible assets appearing on the most recently prepared consolidated
balance sheet of the Issuer and its subsidiaries as of the end of a fiscal
quarter of the Issuer, prepared in accordance with generally accepted accounting
principles as in effect on the date of calculation. "Intangible Assets" means
the amount (if any) which would be stated under the heading "Costs in Excess of
Net Assets of Acquired Companies" or under any other heading relating to
intangible assets separately listed, in each case on the face of the aforesaid
consolidated balance sheet.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 000 Xxxxxxx Xxxxxx, 00 X, Xxx Xxxx, Xxx Xxxx
00000, Attention:
Corporate Trust Administration.
"Depositary" means, unless otherwise specified by the Issuer pursuant to
either Section 2.4 or 2.15, with respect to Securities of any series issuable or
issued as a Global Security, The Depository Trust Company, New York, New York,
or any successor thereto registered under the Securities Exchange Act of 1934 or
other applicable statute or regulation.
"Event of Default" means any event or condition specified as such in
Section 4.1.
"Funded Indebtedness" means any Indebtedness maturing by its terms more
than one year from the date of the determination thereof, including any
Indebtedness renewable or extendible at the option of the obligor to a date
later than one year from the date of the determination thereof.
"Global Security" means a Security issued to evidence all or part of any
series of Securities which is executed by the Issuer and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and pursuant to an Issuer
order which shall be registered in the name of the Depositary or its nominee.
"Guarantee" means the unconditional and unsubordinated guarantee by Tyco or
any other Guarantor of the due and punctual payment of principal of and interest
on the Securities when and as the same shall become due and payable, whether at
the stated maturity, by acceleration, call for redemption or otherwise in
accordance with the terms of the Securities and this Indenture.
"Guarantor" means Tyco or any Subsidiary that after the date of this
Indenture executes a guarantee of the Debt Securities contemplated by Section
3.11 until a successor replaces such party pursuant to the applicable provisions
of this Indenture and, thereafter, shall mean such successor.
"Holder", "holder of Securities", "Securityholder" or other similar terms
mean the registered holder of any Security.
"Indebtedness" means, without duplication, the principal or face amount of
(i) all obligations for borrowed money, (ii) all obligations evidenced by
debentures, notes or other similar instruments, (iii) all obligations in respect
of letters of credit or bankers acceptances or similar instruments (or
reimbursement obligations with respect thereto), (iv) all obligations to pay
3
the deferred purchase price of property or services, except trade accounts
payable arising in the ordinary course of business, (v) all obligations as
lessee which are capitalized in accordance with generally accepted accounting
principles, and (vi) all Indebtedness of others guaranteed by the Issuer or any
of its subsidiaries or for which the Issuer or any of its subsidiaries is
legally responsible or liable (whether by agreement to purchase indebtedness of,
or to supply funds or to invest in, others).
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Five) Tyco
International Group S.A., and, subject to Article Eight, its successors and
assigns.
"Non-Recourse Indebtedness" means Indebtedness the enforcement of which
recourse may be had by the holder(s) thereof only to identified assets of the
Issuer, Tyco or any Subsidiary and not to the Issuer, Tyco or any Subsidiary
personally.
"Officers' Certificate" means a certificate signed by two managing
directors or by the chairman or any vice chairman of the Board of Directors or
the president or any vice president and by the treasurer or any assistant
treasurer or the secretary or any assistant secretary of the Issuer, Tyco or any
other Guarantor, as the case may be, and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 10.5.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Issuer and who shall be satisfactory
to the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 10.5,
if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means a Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1.
"Outstanding", when used with reference to Securities, shall, subject to
the provisions of Section 6.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and
4
held in trust by the Issuer for the Holders of such Securities (if the
Issuer shall act as its own paying agent), provided that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 4.1.
"Permitted Subsidiary Indebtedness" means any of the following: (i)
Indebtedness in an aggregate amount, without duplication, not to exceed, as of
the date of determination, 5% of the Consolidated Tangible Assets of the Issuer
(which Indebtedness is exclusive of the Indebtedness described in clauses (ii)
through (viii) hereof), (ii) Indebtedness owed to the Company, Tyco or any
Subsidiary, (iii) obligations under standby letters of credit or similar
arrangements supporting the performance of a Person under a contract or
agreement in the ordinary course of business, (iv) obligations as lessee in the
ordinary course of business which are capitalized in accordance with United
States generally accepted accounting principles, (v) Indebtedness that was
Permitted Subsidiary Indebtedness at the time that it was first incurred, (vi)
Acquired Indebtedness that by its terms is not callable or redeemable prior to
its stated maturity and that remains outstanding following such time as the
Subsidiary obligated under such Acquired Indebtedness in good faith has made or
caused to be made an offer to acquire all such Indebtedness on terms which, in
the opinion of an independent investment banking firm of national reputation and
standing, are consistent with market practices in existence at the time for
offers of a similar nature, provided that the initial expiration date of any
such offer shall not be later than the expiration of the time period set forth
in Section 3.11(c), (vii) Indebtedness outstanding on the date of the Indenture
and (viii) any renewals, extensions, substitutions, refundings, refinancings or
replacements (collectively, a "refinancing") of any Indebtedness referred to in
clause (vii) of this definition of "Permitted Subsidiary Indebtedness" of a
Subsidiary organized under a jurisdiction other than the United States or any
State thereof or the District of Columbia, including any successive refinancings
so long as the borrower under such refinancing is such a Subsidiary and the
aggregate principal amount of Indebtedness represented thereby (or if such
Indebtedness provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity thereof, the
original issue price of such Indebtedness plus any accreted value attributable
thereto since the original issuance of such Indebtedness) is not increased by
such refinancing plus the lesser of (A) the stated amount of any premium or
other payment required to be paid in connection with such a refinancing pursuant
to the terms of the Indebtedness being refinanced or (B) the amount of premium
or other payment actually paid at such time to refinance the Indebtedness, plus,
in either case, the amount of expenses of such Subsidiary incurred in connection
with such refinancing.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political
5
subdivision thereof.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any".
"Principal Property" means any manufacturing, processing or assembly plant
or facility or any warehouse or distribution facility which is used by any U.S.
Subsidiary after the date hereof, other than any such plants, facilities,
warehouses or portions thereof, which in the opinion of the Board of Directors
of the Issuer, are not collectively of material importance to the total business
conducted by the Issuer and its Restricted Subsidiaries as an entirety, or
which, in each case, has a book value, on the date of the acquisition or
completion of the initial construction thereof by the Issuer, of less than 1.5%
of Consolidated Tangible Assets.
"Responsible Officer" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any
assistant secretary, any assistant treasurer, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary which owns or leases a
Principal Property.
"Sale and Lease-Back Transaction" means an arrangement with any Person
providing for the leasing by the Issuer or a Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Issuer or a Restricted Subsidiary to such Person; provided,
however, that the foregoing shall not apply to any such arrangement involving a
lease for a term, including renewal rights, for not more than three years.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture, or, as the case may be, Securities that have been authenticated
and delivered under this Indenture.
"Significant Subsidiary Guarantor" means any one or more Guarantors (other
than Tyco) which, at the date of determination, together with its or their
respective Subsidiaries in the aggregate, (i) for the most recently completed
fiscal year of the Issuer accounted for more than 10% of the consolidated
revenues of the Issuer or (ii) at the end of such fiscal year, was the owner
(beneficial or otherwise) of more than 10% of the consolidated assets of the
Issuer, as determined in accordance with generally accepted accounting
principles and reflected on the Issuer's consolidated financial statements.
"Subsidiary" means any Person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Issuer or by one or more Subsidiaries or by the Issuer and one
or more Subsidiaries.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Five, shall also include any
successor trustee.
6
"Trust Indenture Act of 1939" (except as otherwise provided in Sections 7.1
and 7.2) means the Trust Indenture Act of 1939 as in force at the date as of
which this Indenture was originally executed.
"vice president" when used with respect to the Issuer, Tyco, any other
Guarantor or the Trustee, means any vice president, whether or not designated by
a number or a word or words added before or after the title of "vice president".
"Voting Stock" of a Person means Capital Stock of such Person of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity on a series of Securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of Directors of the
Issuer, or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with any rules of any securities exchange or
to conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of
such Securities.
SECTION 2.2. Form of Guarantee. The form of Guarantee shall be set forth on
the Securities substantially as follows:
GUARANTEE
For value received, Tyco hereby absolutely, unconditionally and irrevocably
guarantees to the holder of this Security the payment of principal of, interest
on and Additional Amounts in respect of this 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, if any, of this Security, if lawful, and the payment or performance of
all other obligations of the Issuer under the Indenture or the Securities, to
the holder of this Security and the Trustee, all in accordance with and subject
to the terms and limitations of this Security and Article Thirteen of the
Indenture. This Guarantee will not become effective until the
7
Trustee duly executes the certificate of authentication on this Security. 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.
Dated:
TYCO INTERNATIONAL LTD.
By:
-------------------------------------
Name:
Title:
Attest:
-----------------------------
Name:
Title:
SECTION 2.3 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By
-------------------------------------
Authorized Signatory
SECTION 2.4 Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors of the
Issuer and set forth in an Officers' Certificate of the Issuer, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.9, 2.10, 2.12 or 11.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate shall be determined, the
date or dates from which such interest shall accrue, the interest payment
dates on which such interest shall be payable and the record dates for the
determination of Holders to whom interest is payable;
8
(5) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(6) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(7) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(8) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in bankruptcy pursuant to Section 4.2;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and the
Depositary for Global Security or Securities;
(10) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(11) if other than the Trustee, any trustees, authenticating or paying
agents, transfer agents or registrars or any other agents with respect to
the Securities of such series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto.
SECTION 2.5 Authentication and Delivery of Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Issuer may
deliver Securities (with Guarantees endorsed thereon) of any series executed by
the Issuer to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Issuer, signed by any two managing directors or by both (a) the chairman of its
Board of Directors, or any vice chairman of its Board of Directors, or its
president or vice president and (b) its secretary or any assistant secretary or
its treasurer or any assistant treasurer, without any further action by the
Issuer. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 5.1) shall be
fully protected in relying upon:
(1) a certified copy of any resolution or resolutions of the Board of
Directors of the Issuer authorizing the action taken pursuant to the
resolution or resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of Directors
of the Issuer relating to such series, in each case certified by a managing
director or by the secretary or any assistant secretary of the Issuer;
9
(3) an executed supplemental indenture setting forth the form and
terms of the Securities as required pursuant to Sections 2.1 and 2.4
respectively, if any;
(4) an Officers' Certificate of the Issuer setting forth the form and
terms of the Securities as required pursuant to Section 2.1 and 2.4,
respectively and prepared in accordance with Section 10.5;
(5) an Opinion of Counsel, prepared in accordance with Section 10.5,
to the effect that
(a) that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
of the Issuer or by a supplemental indenture as permitted by Sections
2.1 and 2.4 in conformity with the provisions of this Indenture;
(b) that such Securities, when authenticated in accordance with
the terms of this Indenture and delivered by the Trustee and issued by
and delivered by or to the order of the Issuer, against payment
therefor, in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding obligations
of the Issuer;
(c) that all laws and requirements in respect of the execution
and delivery by the Issuer of the Securities have been complied with;
and
(d) covering such other matters as the Trustee may reasonably
request.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders.
SECTION 2.6 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by any two managing directors or by both (a) the chairman
of its Board of Directors or any vice chairman of its Board of Directors or its
president or any vice president and (b) the its treasurer or any assistant
treasurer or its secretary or any assistant secretary, under its corporate seal
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. The seal of the
Issuer may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any managing director or officer of the Issuer who shall have
signed any of the Securities shall cease to be such managing director or officer
before the Security so signed shall be authenticated and delivered by the
Trustee or disposed of by the Issuer, such Security nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Security had not ceased to be such officer of the Issuer; and any Security may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security, shall
10
be the proper managing directors or officers of the Issuer, although at the date
of the execution and delivery of this Indenture any such Person was not such a
managing director or an officer.
SECTION 2.7 Certificate of Authentication. Only such Securities (and
Guarantees endorsed thereon) as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized signatories, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the holder is entitled to
the benefits of this Indenture.
SECTION 2.8 Denomination and Date of Securities; Payments of Interest. The
Securities shall be issuable as registered securities without coupons and in
denominations as shall be specified as contemplated by Section 2.4. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.4.
The Person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall not
be less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.9 Registration, Transfer and Exchange. The Issuer will keep or
cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.2 a Security register or registers in which, subject to
such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Securities as in this Article provided. Such register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all reasonable times
such Security register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or
11
transferees a new Security or Securities of the same series in authorized
denominations for a like aggregate principal amount, and the Issuer shall record
or cause to be recorded the transfer in the Security register or registers.
Any Security or Securities of any series may be exchanged for a Security or
Securities of the same series in other authorized denominations, in an equal
aggregate principal amount. Securities of any series to be exchanged shall be
surrendered at any office or agency to be maintained by the Issuer for the
purpose as provided in Section 3.2, and the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor the Security or Securities
of the same series which the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange, redemption
or payment shall (if so required by the Issuer or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee, duly executed by the Holder or his
attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing of notice of redemption of Securities of such series to be redeemed, or
(b) any Securities selected, called or being called for redemption except, in
the case of any Security where public notice has been given that such Security
is to be redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
None of the Issuer, the Trustee or any Paying Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial interests.
SECTION 2.10 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustees) connected therewith. In case any security which
has matured or is about to mature or has been called for
12
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer of the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.11 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Securities held by it and deliver
a certificate of destruction to the Issuer. If the Issuer shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.12 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the issuer shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.2, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
13
SECTION 2.13 Securities Issuable in the Form of a Global Security. (a) If
the Issuer shall establish pursuant to Section 2.4 that the Securities of a
particular series are to be issued in whole or in part in the form of one or
more Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with Section 2.5 and the Issuer order delivered to the Trustee
thereunder, authenticate and deliver, such Global Security or Securities, which
(i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the Outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be registered in
the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction and (iv) shall bear a legend substantially to
the following effect: "Unless and until it is exchanged in whole or in part for
the individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary."
(b) Notwithstanding any other provision of this Section 2.13 or of Section
2.9, unless the terms of a Global Security expressly permit such Global Security
to be exchanged in whole or in part for individual Securities, a Global Security
may be transferred, in whole but not in part and in the manner provided in
Section 2.9, only to another nominee of the Depositary for such Global Security,
or by the nominee of the Depositary to the Depositary, or to a successor
Depositary for such Global Security selected or approved by the Issuer or to a
nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies the
Issuer that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time the Depositary for the Securities for such series
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, or other applicable statute or regulation, the Issuer shall appoint
a successor Depositary with respect to such Global Security. If a successor
Depositary for such Global Security is not appointed by the Issuer within 90
days after the Issuer receives notice or becomes aware of such ineligibility,
the Issuer's election pursuant to Section 2.4(9) shall no longer be effective
with respect to such Global Security and the Issuer will execute, and the
Trustee, upon receipt of an Issuer order for the authentication and delivery of
individual Securities of such series in exchange for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and
terms in a definitive form in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global Security.
(ii) The Issuer may at any time and in its sole discretion determine that
the Securities of any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Issuer will execute, and the Trustee, upon receipt
of an Issuer order for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and
terms in a definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities representing such series
in exchange for such Global Security or Securities.
(iii) If specified by the Issuer pursuant to Section 2.4 with respect to
Securities issued or issuable in the form of a Global Security, the Depositary
for such Global Security may surrender such Global Security in exchange in whole
or in part for individual Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon the Issuer shall execute, and the Trustee shall
authenticate and
14
deliver, without service charge, (1) to each Person specified by such Depositary
a new Security or Securities of the same series of like tenor and terms and of
any authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such person's beneficial interest in the
Global Security; and (2) to such Depositary a new Global Security of like tenor
and terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three paragraphs,
the Issuer will execute and the Trustee will authenticate and deliver individual
Securities in definitive registered form in authorized denominations. Upon the
exchange of a Global Security for individual Securities, such Global Security
shall be cancelled by the Trustee. Securities issued in exchange for a Global
Security pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each installment of interest on
the Securities of any series may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any of the Securities
remain outstanding, the Issuer will maintain in The Borough of Manhattan, The
City of New York for each series: an office or agency (a) where the Securities
may be presented for payment, (b) where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided and (c)
where notices and demands to or upon the Issuer in respect of the Securities or
of this Indenture may be served. The Issuer will give to the Trustee written
notice of the location of any such office or agency and of any change of
location thereof. Unless otherwise specified in accordance with Section 2.4, the
Issuer hereby initially designates the Corporate Trust Office of The Bank of New
York, 000 Xxxxxxx Xxxxxx, 00 X, Xxx Xxxx, Xxx Xxxx 00000, acting as the Issuer's
agent, as the office to be maintained by it for each such purpose. In case the
Issuer shall fail to so designate or maintain any such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of the Trustee, will
appoint, in the manner provided in Section 5.9, a Trustee, so that there shall
at all times be a Trustee with respect to each series of Securities hereunder.
SECTION 3.4 Paying Agent. Whenever the Issuer shall appoint a paying agent
other than the Trustee with respect to the Securities of any series, it will
cause such paying agent
15
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section.
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the failure
referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer may at
any time, for the purpose of obtaining a satisfaction and discharge with respect
to one or more or all series of Securities hereunder, or for any other reason,
pay or cause to be paid to the Trustee all sums held in trust for any such
series by the Issuer or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Section 9.3 and 9.4
SECTION 3.5 Certificate of the Issuer and the Guarantors. So long as any of
the Securities remain outstanding, the Issuer, Tyco and any other Guarantor will
furnish to the Trustee on or before March 31 in each year (beginning with 1999)
a brief certificate (which need not comply with Section 10.5) executed by the
principal executive, financial or accounting officer of each of the Issuer, Tyco
and such Guarantor on their respective behalf as to his or her knowledge of the
Issuer's, Tyco's and such Guarantor's, as the case may be, compliance with all
covenants and agreements under the Indenture required to be complied with by the
Issuer, Tyco and such Guarantor, respectively, (such compliance to be determined
without regard to any period of grace or requirement of notice provided under
the Indenture). Such certificate need not include a reference to any
non-compliance that has been fully cured prior to the date as of which such
certificate speaks.
SECTION 3.6 Securityholders Lists. If and so long as the Trustee shall not
be the Security registrar for the Securities of any series, the Issuer will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act
16
of 1939 (a) semi-annually not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.4 for
non-interest bearing securities in each year, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 3.7 Reports by the Issuer and Tyco. So long as any of the
Securities remain outstanding, the Issuer and Tyco each covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information, documents,
and other reports which the Issuer and Tyco may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; provided, however, that the Issuer and Tyco shall have no
obligation to file such reports with the Trustee as long as no Securities of any
series are outstanding.
SECTION 3.8 Reports by the Trustee. Any Trustee's report required under
Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or
before July 15 in each year following the date hereof, so long as any Securities
are outstanding hereunder, and shall be dated as of a date convenient to the
Trustee no more than 60 nor less than 45 days prior thereto.
SECTION 3.9 Limitations on Liens. After the date hereof and so long as any
Securities are Outstanding (but subject to defeasance, as provided in the
Indenture), the Issuer will not, and will not permit any Restricted Subsidiary
to, issue, assume or guarantee any Indebtedness which is secured by a mortgage,
pledge, security interest, lien or encumbrance (each a "lien") upon any
Principal Property, or any shares of stock of or Indebtedness issued by any
Restricted Subsidiary, whether now owned or hereafter acquired, without
effectively providing that, for so long as such lien shall continue in existence
with respect to such secured Indebtedness, the Securities (together with, if the
Issuer shall so determine, any other Indebtedness of the Issuer ranking equally
with the Securities, it being understood that for purposes hereof, Indebtedness
which is secured by a lien and Indebtedness which is not so secured shall not,
solely by reason of such lien, be deemed to be of different ranking) shall be
equally and ratably secured by a lien ranking ratably with or equal to (or at
the Issuer's option prior to) such secured Indebtedness; provided, however, that
the foregoing covenant shall not apply to:
(a) liens existing on the date the Securities of the subject series are
issued;
(b) liens on the stock, assets or Indebtedness of a corporation existing at
the same time such corporation becomes a Restricted Subsidiary unless created in
contemplation of such Restricted Subsidiary becoming such;
(c) liens on any assets or Indebtedness of a corporation existing at the
time such corporation is merged into the Issuer or a Subsidiary or at the time
of a purchase, lease or other acquisition of the assets of a corporation or firm
as an entirety or substantially as an entirety by the Issuer or Subsidiary;
(d) liens on any Principal Property existing at the time of acquisition
thereof by the Issuer or any Restricted Subsidiary, or liens to secure the
payment of the purchase price of such Principal Property by the Issuer or any
Restricted Subsidiary, or to secure any Indebtedness incurred, assumed or
guaranteed by the Issuer or a Restricted Subsidiary for the purpose of financing
all or any part of the purchase price of such Principal Property or improvements
or construction thereon, which Indebtedness is incurred, assumed or guaranteed
prior to, at the time of, or within one year after such acquisition (or in the
case of real property, completion of such
17
improvement or construction or commencement of full operation of such property,
whichever is later); provided, however, that in the case of any such
acquisition, construction or improvement, the lien shall not apply to any
Principal Property theretofore owned by the Issuer or a Restricted Subsidiary,
other than the Principal Property so acquired, constructed or improved;
(e) liens securing Indebtedness owing by any Restricted Subsidiary to the
Issuer, Tyco or a Subsidiary or by the Issuer to Tyco;
(f) liens in favor of the United States or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract, statute, rule or regulation or to secure any
Indebtedness incurred or guaranteed for the purpose of financing all or any part
of the purchase price (or, in the case of real property, the cost of
construction or improvement) of the Principal Property subject to such liens
(including but not limited to, liens incurred in connection with pollution
control, industrial revenue or similar financings);
(g) pledges, liens or deposits under worker's compensation or similar
legislation, and liens thereunder which are not currently dischargeable, or in
connection with bids, tenders, contracts (other than for the payment of money)
or leases to which the Issuer or any Restricted Subsidiary is a party, or to
secure the public or statutory obligations of the Issuer or any Restricted
Subsidiary, or in connection with obtaining or maintaining self-insurance, or to
obtain the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar matters, or
to secure surety, performance, appeal or customs bonds to which the Issuer or
any Restricted Subsidiary is a party, or in litigation or other proceedings in
connection with the matters heretofore referred to in this clause, such as, but
not limited to, interpleader proceedings, and other similar pledges, liens or
deposits made or incurred in the ordinary course of business;
(h) liens created by or resulting from any litigation or other proceeding
which is being contested in good faith by appropriate proceedings, including
liens arising out of judgments or awards against the Issuer or any Restricted
Subsidiary with respect to which the Issuer or such Restricted Subsidiary is in
good faith prosecuting an appeal or proceedings for review or for which the time
to make an appeal has not yet expired; or final unappealable judgment liens
which are satisfied within 15 days of the date of judgment; or liens incurred by
the Issuer or any Restricted Subsidiary for the purpose of obtaining a stay or
discharge in the course of any litigation or other proceeding to which the
Issuer or such Restricted Subsidiary is a party;
(i) liens for taxes or assessments or governmental charges or levies not
yet due or delinquent; or which can thereafter be paid without penalty, or which
are being contested in good faith by appropriate proceedings; landlord's liens
on property held under lease; and any other liens or charges incidental to the
conduct of the business of the Issuer or any Restricted Subsidiary, or the
ownership of their respective assets, which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit and which do not,
in the opinion of the Board of Directors of the Issuer, materially impair the
use of such assets in the operation of the business of the Issuer or such
Restricted Subsidiary or the value of such Principal Property for the purposes
of such business;
(j) liens to secure the Issuer's or any Restricted Subsidiary's obligations
under agreements with respect to spot, forward, future and option transactions,
entered into in the ordinary course of business;
18
(k) liens not permitted by the foregoing clauses (a) to (j), inclusive, if
at the time of, and after giving effect to, the creation or assumption of any
such lien, the aggregate amount of all outstanding Indebtedness of the Issuer
and its Restricted Subsidiaries (without duplication) secured by all such liens
not so permitted by the foregoing clauses (a) through (j), inclusive, together
with the Attributable Debt in respect of Sale and Lease-Back Transactions
permitted by paragraph (a) under Section 3.10 do not exceed the greater of
$100,000,000 and 10% of Consolidated Net Worth; and
(l) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part, of any lien referred to in the
foregoing clauses (a) to (k), inclusive; provided, however, that the principal
amount of Indebtedness secured thereby unless otherwise excepted under clauses
(a) through (k) shall not exceed the principal amount of Indebtedness so secured
at the time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the assets (or any
replacements therefor) which secured the lien so extended, renewed or replaced
(plus improvements and construction on real property).
SECTION 3.10 Limitation on Sale and Lease-Back Transactions. The Issuer
will not, and will not permit any Restricted Subsidiary to, enter into any Sale
and Lease-Back Transaction unless:
(a) the Issuer or such Restricted Subsidiary would, at the time of entering
into a Sale and Lease-Back Transaction, be entitled to incur Indebtedness
secured by a lien on the Principal Property to be leased in an amount at least
equal to the Attributable Debt in respect of such Sale and Lease-Back
Transaction, without equally and ratably securing the Securities pursuant to
Section 3.9; or
(b) the direct or indirect proceeds of the sale of the Principal Property
to be leased are at least equal to the fair value of such Principal Property (as
determined by the Issuer's Board of Directors) and an amount equal to the net
proceeds from the sale of the property or assets so leased are applied, within
180 days of the effective date of any such Sale and Lease-Back Transaction, to
the purchase or acquisition (or, in the case of real property, commencement of
the construction) of property or assets or to the retirement (other than at
maturity or pursuant to a mandatory sinking fund or mandatory redemption
provision) of Securities, or of Funded Indebtedness of the Issuer or a
consolidated Subsidiary ranking on a parity with or senior to the Securities;
provided that there shall be credited to the amount of net worth proceeds
required to be applied pursuant to this clause (b) an amount equal to the sum of
(i) the principal amount of Securities delivered within 180 days of the
effective date of such Sale and Lease-Back Transaction to the Trustee for
retirement and cancellation and (ii) the principal amount of other Funded
Indebtedness voluntarily retired by the Issuer within such 180-day period,
excluding retirements of Securities and other Funded Indebtedness as a result of
conversions or pursuant to mandatory sinking fund or mandatory prepayment
provisions.
SECTION 3.11 Limitation on Indebtedness of Subsidiaries. (a) The Issuer
will not cause or permit any Subsidiary (which is not a Guarantor), directly or
indirectly, to create, incur, assume, guarantee or otherwise in any manner
become liable for the payment of or otherwise incur (collectively, "incur"), any
Indebtedness (including any Acquired Indebtedness but excluding any Permitted
Subsidiary Indebtedness) unless such Subsidiary simultaneously executes and
delivers a supplemental indenture to the Indenture providing for a Guarantee of
the Securities as provided in Section 3.14.
(b) Notwithstanding the foregoing, any Guarantee by a Subsidiary of the
19
Securities shall provide by its terms that it (and all liens securing the same)
shall be automatically and unconditionally released and discharged upon (i) any
sale, exchange or transfer, to any Person not an Affiliate of the Issuer, of all
of the Issuer's equity interests in, or all or substantially all the assets of,
such Subsidiary, which transaction is in compliance with the terms of this
Indenture and such Subsidiary is released from all guarantees, if any, by it of
other Indebtedness of the Issuer or any Subsidiaries, (ii) the payment in full
of all obligations under the Indebtedness giving rise to such Guarantee and
(iii) with respect to Indebtedness described in clause (a) above constituting
guarantees, the release by the holders of such Indebtedness of the guarantee by
such Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness), at such time as (A) no other Indebtedness
(other than Permitted Subsidiary Indebtedness) has been guaranteed by such
Subsidiary, as the case may be, or (B) the holders of all such other
Indebtedness which is guaranteed by such Subsidiary also release the guarantee
by such Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness).
(c) For purposes of this Section 3.11, any Acquired Indebtedness shall not
be deemed to have been incurred until 180 days from the date (A) the Person
obligated on such Acquired Indebtedness becomes a Subsidiary or (B) the
acquisition of assets in connection with which such Acquired Indebtedness was
assumed is consummated.
SECTION 3.12 Notice to Trustee. The Issuer, Tyco or any other Guarantor
shall provide written notice to the Trustee within 30 days of the occurrence of
any Event of Default under Section 4.1.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of
such series; or
(d) default in the performance, or breach, of any covenant or
agreement of the Issuer, Tyco or any other Guarantor in respect of the
Securities of such series
20
and related Guarantees (other than a covenant or agreement in respect of
the Securities of such series and related Guarantees a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 90 days
after the date on which there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
of all series affected thereby, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) an event of default, as defined in any indenture, including this
Indenture, or instrument evidencing or under which the Issuer, Tyco or any
other Guarantor on the date any determination shall be made under this
clause (g), shall have outstanding at least $50,000,000 aggregate principal
amount of Indebtedness for borrowed money (other than Non-Recourse
Indebtedness), shall happen and be continuing and such event of default
shall involve the failure to pay the principal of or interest on such
Indebtedness (or any part thereof) on the final maturity date thereof after
the expiration of any applicable grace period with respect thereto, or such
Indebtedness shall have been accelerated so that the same shall be or
become due and payable prior to the date on which the same would otherwise
have become due and payable, and such acceleration shall not be rescinded
or annulled within ten Business Days after notice thereof shall have been
given to the Issuer, Tyco or such Guarantor, as the case may be, by the
Trustee (if such event be known to it), or to the Issuer, Tyco or such
Guarantor, as the case may be, and the Trustee by the Holders of at least
25% in aggregate principal amount of all of the Securities at the time
Outstanding (treated as one class); provided that, if such event of default
under such indenture or instrument shall be remedied or cured by the
Issuer, Tyco or such Guarantor, as the case may be, or waived by the
requisite holders of such indebtedness, then the Event of Default hereunder
by reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the Trustee
or any of the Securityholders, and provided further, however, that subject
to the provisions of Sections 5.1 and 5.2, the Trustee shall not be charged
with knowledge of any such event of default unless written notice thereof
shall have been given to the Trustee by the Issuer, Tyco or such Guarantor,
as the case may be, by the holder of an agent of the holder of any such
Indebtedness, by the trustee then acting under any indenture or other
instrument under which such default shall have occurred, or by the Holders
of not less than 25% in the aggregate principal amount of the Securities at
the time Outstanding (treated as one class);
(f) any Guarantee shall for any reason cease to be, or shall for any
reason be asserted in writing by any Guarantor or the Issuer not to be in
full force and effect and enforceable in accordance with its terms except
to the extent contemplated by the Indenture and any such Guarantee;
(g) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer, Tyco or any Significant
Subsidiary Guarantor in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer, Tyco or such Significant
Subsidiary Guarantor or for any substantial part of its property or
ordering the winding up or liquidation of its affairs, and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(h) the Issuer, Tyco or any Significant Subsidiary Guarantor shall
commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or
21
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Issuer, Tyco or such
Significant Subsidiary Guarantor or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
(i) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of
Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (d), (f) or (i) above
(if the Event of Default under clause (d) or (i), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (d) or
(i) (if the Event of Default under clause (d) or (i), as the case may be, is
with respect to all series of Securities then Outstanding), (e), (g) or (h)
occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Issuer (and the to Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then outstanding and
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer, Tyco or any other Guarantor shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of such series (or
of all the Securities, as the case may be) which shall have become due otherwise
than by acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series (or at the respective rates of interest or Yields to
Maturity of all the Securities, as the case may be) to the date of such payment
or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal of Securities
which shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein -- then and in every such case the Holders
of a majority in aggregate principal amount of all the
22
Securities of such series, each series voting as a separate class (or of all the
Securities, as the case may be, voting as a single class), then outstanding, by
written notice to the Issuer and to the Trustee, may waive all defaults with
respect to such series (or with respect to all the Securities, as the case may
be) and rescind and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.
Each of the Issuer, Tyco and any other Guarantor covenants that (a) in case
default shall be made in the payment of any installment of interest on any of
the Securities of any series when such interest shall have become due and
payable, and such default shall have continued for a period of 30 days or (b) in
case default shall be made in the payment of all or any part of the principal of
any of the Securities of any series when the same shall have become due and
payable, whether upon maturity of the Securities of such series or upon any
redemption or by declaration or otherwise -- then upon demand of the Trustee,
the Issuer, Tyco and such Guarantor will pay to the Trustee for the benefit of
the Holders of the Securities of such series the whole amount that then shall
have become due and payable on all Securities of series for principal or
interest, as the case may be (with interest to the date of such payment upon the
overdue principal and to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series); and in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal
of and interest on the Securities of any series to the Holders, whether or not
the principal of and interest on the Securities of such series be overdue.
In case the Issuer, Tyco or any other Guarantor shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer,
Tyco, such Guarantor or other obligor upon such Securities and collect in the
manner provided by law out of the property of the Issuer, Tyco, such Guarantor
or other obligor upon such Securities, wherever situated, the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings relative to the Issuer, Tyco,
any other Guarantor or any other obligor upon the Securities under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a
23
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer, Tyco or such Guarantor or their respective property or
such other obligor or its property, or in case of any other comparable judicial
proceedings relative to the Issuer, Tyco, such Guarantor or other obligor upon
the Securities of any series, or to the creditors or property of the Issuer,
Tyco, such Guarantor or such other obligor, the Trustee, irrespective of whether
the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer Tyco, such Guarantor or
other obligor upon the Securities of any series, or to the creditors or
property of the Issuer Tyco, such Guarantor or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith and all other amounts
due to the Trustee or any predecessor Trustee pursuant to Section 5.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements
and
24
compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by the Trustee
pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: in case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
25
SECTION 4.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.6 Limitations on Suits by Securityholders. No Holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of such series
then outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 4.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and interest on such Security on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 4.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Securityholders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in
26
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 4.6, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Securityholders.
SECTION 4.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time Outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 5.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive any past default or Event of Default described in clause (d) or (i)
of Section 4.1 which relates to less than all series of Securities then
Outstanding, except a default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.2. Prior to a declaration of acceleration of the maturity
of the Securities of any series as provided in Section 4.1, the Holders of
Securities of a majority in principal amount of all the Securities then
Outstanding (voting as one class) may on behalf of all Holders waive any past
default or Event of Default referred to in said clause (d) or (i) which relates
to all series of Securities then Outstanding, or described in clause (e), (g) or
(h) of Section 4.1, except a default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder of
each Security affected as provided in Section 7.2. In the case of any such
waiver, the Issuer, Tyco, any other Guarantor, the Trustee and the Holders of
the Securities of each series affected shall be restored to their former
positions and rights hereunder, respectively.
27
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances. The Trustee shall give to the Securityholders of any series, as
the names and addresses of such Holders appear on the registry books, notice by
mail of all defaults known to the Trustee which have occurred with respect to
such series, such notice to be transmitted within 90 days after the occurrence
thereof, unless such defaults shall have been cured before the giving of such
notice (the term "default" or "defaults" for the purposes of this Section being
hereby defined to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking or purchase fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clauses (d) or (i) of Section 4.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clauses (d) or (i) (if the suit
relates to all the Securities then Outstanding), (e), (g) or (h) of Section 4.1,
10% in aggregate principal amount of all Securities Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred
28
(which has not been cured or waived) the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 4.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 Certain Rights of the Trustee. In furtherance of and subject to
the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note,
29
coupon, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by any managing director or the secretary or an
assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion of counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing so
to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation reasonably requested by the Holders as aforesaid shall
be paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of Securities
or Application of Proceeds Thereof. The recitals contained herein and in the
Securities, except the Trustee's certificates of authentication, shall be taken
as the statements of the Issuer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
30
SECTION 5.4 Trustee and Agents May Hold Securities; Collections, etc. The
Trustee or any agent of the Issuer, Tyco, any other Guarantor or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer, Tyco or such Guarantor and
receive, collect, hold and retain collections from the Issuer, Tyco or such
Guarantor with the same rights it would have if it were not the Trustee or such
agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the provisions of Section
9.8 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except to the extent
any such expense, disbursement or advance may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each predecessor
trustee for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and the performance of its duties hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in the premises, except to the extent such loss liability
or expense is due to the negligence or bad faith of the Trustee or such
predecessor trustee. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor trustee and to pay or
reimburse the Trustee and each predecessor trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property
and funds hold or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities, and the Securities are
hereby subordinated to such senior claim.
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc. Subject
to Sections 5.1 and 5.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.8 Persons Eligible for Appointment as Trustee. The Trustee for
each series of Securities hereunder shall at all times be a corporation or
national banking association having a combined capital and surplus of at least
$50,000,000, and which is eligible in accordance with the provisions of Section
310(a) of the Trust Indenture Act of 1939. If such corporation or national
banking association publishes reports of condition at least annually, pursuant
to law or to
31
the requirements of a Federal, State or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee. (a)
The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer and by mailing notice thereof by first class
mail to Holders of the applicable series of Securities at their last addresses
as they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors of the Issuer, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 4.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the Issuer
or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities
32
of each series at the time outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee
with respect to the securities of such series by delivering to the Trustee
so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that regard taken by
the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 5.9 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 5.10.
SECTION 5.10 Acceptance of Appointment by Successor Trustee. Any successor
trustee appointed as provided in Section 5.9 shall execute and deliver to the
Issuer and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor trustee, upon payment of its charges then unpaid,
the trustee ceasing to act shall, subject to Section 9.8, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 5.6.
If a successor trustee is appointed with respect to the securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor trustee as provided in this
Section 5.10, the Issuer shall mail notice thereof by first-class mail to the
Holders of Securities of any series for which such successor trustee is acting
as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.9. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business of
Trustee. Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated, or any
corporation or national banking
33
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or national banking association
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation or national
banking association shall be eligible under the provisions of Section 5.8,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor trustee or to authenticate Securities of any series in the
name of any predecessor trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 5.1 and 5.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding of Securities;
Record Date. Subject to Sections 5.1 and 5.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The holding of Securities shall
be proved by the Security register or by a certificate of the registrar thereof.
The Issuer may set a record date for purposes of determining the identity of
holders of Securities of any series entitled to vote or consent to any action
referred to in Section 6.1, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates (in the case of any
adjournment or reconsideration) not more than 60 days nor less than five days
prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, only Holders of Securities of such
series of record on such record date shall be entitled to so vote or give such
consent or revoke such vote or consent.
SECTION 6.3 Holders to be Treated as Owners. The Issuer, Tyco, any other
Guarantor, the Trustee and any agent of the Issuer, Tyco, such Guarantor or the
Trustee may deem and treat the Person in whose name any Security shall be
registered upon the Security
34
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and none of the Issuer, Tyco, such
Guarantor or the Trustee or any agent of the Issuer, Tyco, such Guarantor or the
Trustee shall be affected by any notice to the contrary. All such payments so
made to any such Person, or upon his order, shall be valid, and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer, Tyco, any other Guarantor, or any other obligor on the Securities with
respect to which such determination is being made or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, Tyco, such Guarantor or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer, Tyco, such Guarantor or any other obligor upon the Securities
or any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, Tyco, such Guarantor or any
other obligor on the Securities. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer, Tyco or such Guarantor shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer, Tyco or such Guarantor to be owned or held by or for the account of
any of the above-described Persons; and, subject to Sections 5.1 and 5.2, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 6.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, Tyco, any other Guarantor, the
Trustee and the Holders of all the Securities affected by such action.
35
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders. The
Issuer, Tyco and any other Guarantor when authorized by resolutions of their
respective Board of Directors, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto for one or more
of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer or
any Guarantor, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer or any Guarantor such
further covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection of the
Holders of Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set
forth; provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors of the Issuer may deem necessary or
desirable and which shall not adversely affect the interests of the Holders
of the Securities in any material respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to add a Guarantor pursuant to the provisions of Sections 3.11 and
13.4; and
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 5.10.
The Trustee is hereby authorized to join with the Issuer, Tyco and any
other
36
Guarantor in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities
at the time outstanding, notwithstanding any of the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Securityholders. With
the consent (evidenced as provided in Article Six) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, Tyco and any other Guarantor, when authorized by resolutions
of their respective Boards of Directors, and the Trustee may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
series; provided, that no such supplemental indenture shall (a) extend the final
maturity of any Security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.1 or the amount
thereof provable in bankruptcy pursuant to Section 4.2, or impair or affect the
right of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so affected,
or (b) reduce the aforesaid percentage of Securities of any series, the consent
of the Holders of which is required for any such supplemental indenture, without
the consent of the Holders of each Security so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors certified by a managing director or the secretary or an
assistant secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Securityholders as aforesaid and other documents, if any, required by
Section 6.1, the Trustee shall join with the Issuer, Tyco and any other
Guarantor in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture, or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer, Tyco, any other Guarantor and
the Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Issuer shall mail a notice thereof by first class mail to the
Holders of Securities of each series affected thereby at their addresses as they
shall appear on the registry books of the Issuer, setting forth in general terms
the substance of such supplemental indenture. Any failure of the Issuer to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution of any
37
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, Tyco, any other Guarantor and
the Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 5.1 and 5.2, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Seven complies with the applicable provisions
of this Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken at any
such meeting. If the Issuer or the Trustee shall so determine, new Securities of
any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer, Tyco
and any other Guarantor, and authenticated by the Trustee and delivered in
exchange for the Securities of such series then outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer and Guarantors May Consolidate, etc., on Certain Terms.
Each of the Issuer, Tyco and any other Guarantors, if any, covenants that it
will not merge or consolidate with any other Person or sell or convey all or
substantially all of its assets to any Person, unless (i) either the Issuer or
such Guarantor, as the case may be, shall be the continuing corporation, or the
successor corporation or the Person which acquires by sale or conveyance
substantially all the assets of the Issuer or such Guarantor, as the case may be
(if other than the Issuer or such Guarantor, as the case may be) shall expressly
assume the due and punctual payment of the principal of and interest on all the
Securities or the obligations under the Guarantees, as the case may be,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and agreements of this Indenture to be performed or
observed by the Issuer or such Guarantor, as the case may be, by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Issuer or such Guarantor, as the case may be, or
such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or agreement.
SECTION 8.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance in which the Issuer or any Guarantor,
as the case may be, is not the continuing corporation, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer or such Guarantor, as the case may
be, with the same effect as if it had been named herein. Such successor
corporation may cause to be signed, and may issue either in its own name or in
the name of the Issuer or such Guarantor, as the case may be, prior to such
succession any or all of the Securities or Guarantees as the case may be,
issuable hereunder which theretofore shall not
38
have been signed by the Issuer or such Guarantor, as the case may be, and
delivered to the Trustee; and, upon the order of such successor corporation
instead of the Issuer or such Guarantor, as the case may be, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities or Guarantees, as the case
may be, which previously shall have been signed and delivered by the officers of
the Issuer or such Guarantor, as the case may be, to the Trustee for
authentication, and any Securities or Guarantees, as the case may be, which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities or Guarantees, as the case may
be, so issued shall in all respects have the same legal rank and benefit under
this Indenture as the Securities or Guarantees, as the case may be, theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Securities or such Guarantees, as the case may be, had been issued
at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities or Guarantees thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way
of lease) the Issuer or any Guarantor or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 8.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 5.1 and 5.2, may receive an opinion of Counsel, prepared
in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
SECTION 8.4 Exception Applicable to Certain Guarantors. The provisions of
this Article shall not apply to a merger, consolidation, sale or conveyance of a
Guarantor other than Tyco, if, in connection with such merger, consolidation,
sale or conveyance, the Guarantee of such Guarantor is released and discharged
in accordance with Section 3.11(b).
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time (a) the
Issuer or any Guarantor shall have paid or caused to be paid the principal of
and interest on all the Securities of any series outstanding hereunder (other
than Securities of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.10) as and when the
same shall have become due and payable, or (b) the Issuer shall have delivered
to the Trustee for cancellation all securities of any series theretofore
authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.10) or (c) (i) all the Securities of such series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or may, at the
option of the Issuer, be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (ii) the Issuer or any Guarantor shall have irrevocably deposited or caused
to be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Issuer in
accordance with
39
Section 9.8) or direct obligations of the United States of America, backed by
its full faith and credit, maturing as to principal and interest in such amounts
and at such times as will insure the availability of cash sufficient to pay at
maturity or upon redemption all Securities of such series (other than any
Securities of such series which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.10) not
theretofore delivered to the Trustee for cancellation, including principal and
interest due or to become due on or prior to such date of maturity as the case
may be, and if, in any such case, the Issuer shall also pay or cause to be paid
all other sums payable hereunder by the Issuer with respect to Securities of
such series, then this Indenture shall cease to be of further effect with
respect to Securities of such series (except as to (i) rights of registration of
transfer and exchange of Securities of such series, and the Issuer's right of
optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (iii) rights of Holders to receive payments of
principal thereof and interest thereon upon the original stated due dates
therefor (but not upon acceleration) and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, in each case solely out of
property so deposited with the Trustee, and (iv) the rights, obligations and
immunities of the Trustee hereunder, and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Issuer, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities to receive amounts in
respect of principal of and interest on the Securities held by them shall not be
delayed longer than required by then-applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed. The Issuer agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any, services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
SECTION 9.2 Issuer's Option to Effect Defeasance or Covenant Defeasance. In
addition to discharge of the Indenture pursuant to Section 9.1, with respect to
any series of Securities where the exact amount of principal and interest due on
which can be determined at the time of making the deposit referred to in Section
9.5(a), the Issuer may at its option by resolution of its Board of Directors
elect at any time either (a) to effect a defeasance (as defined in Section 9.3)
of the Securities of such series under Section 9.3 or (b) to effect a covenant
defeasance (as defined in Section 9.4) of the Securities of such series under
Section 9.4, in each case upon compliance with the applicable conditions set
forth below in this Article Nine.
SECTION 9.3 Defeasance and Discharge. Upon the Issuer's exercise of the
option set forth in clause (a) of Section 9.2 with respect to the Securities of
a series, the Issuer and each Guarantor shall be deemed to have been discharged
from its obligations with respect to the Securities of such series on and after
the date the conditions precedent set forth in Section 9.5 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer shall be deemed to have paid and discharged the entire Indebtedness
represented by the Securities of such series and the Issuer and each Guarantor
shall be deemed to have satisfied all their respective other obligations under
the Securities of such series and under this Indenture relating to the
Securities of such series (and the Trustee, at the expense of the Issuer, shall
execute proper instruments acknowledging the same), except for, (i) rights of
registration of transfer and exchange of Securities of such series, and the
Issuer's right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of Holders to
receive payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration), and remaining rights of
the Holders to receive mandatory sinking fund payments, if any, in each case
solely from the trust funds described in Section 9.5(a); and (iv) the rights,
obligations and immunities of the Trustee hereunder. Subject to compliance with
this Article Nine, the Issuer may exercise its option under this Section 9.3
notwithstanding
40
the prior exercise of its option under Section 9.4 with respect to the
Securities of such series.
SECTION 9.4 Covenant Defeasance. Upon the Issuer's exercise of the option
set forth in clause (b) of Section 9.2 with respect to the Securities of a
series, the Issuer and each Guarantor shall be released from their respective
obligations under Sections 3.9, 3.10, 3.11 and 8.1 with respect to the
Securities of such series on and after the date the conditions precedent set
forth in Section 9.5 are satisfied (hereinafter, "covenant defeasance"). For
this purpose, such covenant defeasance means that, with respect to the
Securities of such series, the Issuer and each Guarantor may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section 4.1,
but the remainder of this Indenture and such Securities shall be unaffected
thereby.
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance. The following
shall be the conditions precedent to the application of either Section 9.3 or
Section 9.4 to the Securities of a series:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds
in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the holders of the Securities of such series (i) money in an
amount, or (ii) direct obligations of the United States of America, backed
by its full faith and credit, which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment in
respect of the Securities of such series, money in an amount, or (iii) a
combination thereof, sufficient (without consideration of any reinvestment
of such money, principal or interest), in the opinion of a nationally
recognized firm of independent public accountants or a nationally
recognized investment banking firm expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (A) the principal of and
interest on all Securities of such series on each date such principal or
interest is due and payable and (B) any mandatory sinking fund payments on
the dates on which such payments are due and payable in accordance with the
terms of this Indenture and the Securities of such series. Before such a
deposit the Issuer may make arrangements satisfactory to the Trustee for
the redemption of the Securities of such series at a future date or dates
in accordance with Article Eleven, if applicable to the Securities of such
series, which shall be given effect in applying the foregoing.
(b) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (i) on the date of such
deposit or (ii) insofar as Subsections 4.1(g) and 4.1(h) are concerned, at
any time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the date following the expiration of the
longest preference period applicable to the Issuer in respect of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(c) Such defeasance or covenant defeasance will not (i) cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer or any Guarantor or (ii)
41
result in the trust arising from such deposit to constitute, unless it is
qualified as, a regulated investment company under the Investment Company
Act of 1940.
(d) Such defeasance or covenant defeasance will not result in a breach
or violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Issuer or any Guarantor is a party or
by which it is bound.
(e) If the Securities of such series are then listed on any national
securities exchange registered under the Securities Exchange Act of 1934,
the Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that the exercise of the option under Section 9.3 or 9.4, as the
case may be, will not cause such Securities to be delisted.
(f) In the case of an election under Section 9.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from the United States Internal Revenue Service (the
"IRS") a private letter ruling, (ii) there has been published by the IRS a
general revenue ruling, or (iii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in each case to the
effect that, and based thereon such opinion shall confirm that, the Holders
of the Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(g) in the case of an election under Section 9.4, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
holders of the Securities of such series will not recognize income, gain or
loss for United States Federal income tax purposes as a result of such
covenant defeasance and will be subject to United States Federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(h) in the case of an election under either Section 9.3 or Section
9.4, the Issuer shall have delivered to the Trustee an Opinion of Counsel
of Luxembourg counsel to the effect that (i) payments from the defeasance
trust will be free and exempt from any and all withholding and other taxes
imposed or levied by or on behalf of Luxembourg or any political
subdivision thereof having the power to tax, and (ii) Holders of the
Securities of such series will not recognize any income, gain or loss for
Luxembourg income tax and other tax purposes as a result of such deposit
and defeasance or covenant defeasance, as applicable, and will be subject
to Luxembourg income tax and other tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit
and defeasance or covenant defeasance, as applicable, had not occurred.
(i) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Issuer in connection therewith pursuant to Section 2.4.
(j) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 9.3
or the covenant defeasance under Section 9.4 (as the case may be) have been
complied with.
SECTION 9.6 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 9.8, all moneys deposited with the Trustee
pursuant to Section 9.1
42
or 9.5 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Issuer acting as its own paying
agent), to the Holders of the particular Securities of such series for the
payment or redemption of which such moneys have been deposited with the Trustee,
of all sums due and to become due thereon for principal and interest; but such
money need not be segregated from other funds except to the extent required by
law.
SECTION 9.7 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 9.8 Return of Moneys Held by Trustee and Paying Agent Unclaimed for
Two Years. Any moneys deposited with or paid to the Trustee or any paying agent
for the payment of the principal of or interest on any Security of any series
and not applied but remaining unclaimed for two years after the date upon which
such principal or interest shall have become due and payable, shall, upon the
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent, and
the Holder of the Security of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease.
SECTION 9.9 Indemnity for Direct Obligations of the United States. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the money or the direct obligations of the United
States of America deposited pursuant to Section 9.1 or 9.5 or the principal or
interest received in respect of such obligations.
SECTION 9.10 Reinstatement. If the Trustee or the paying agent is unable to
apply any money or direct obligations of the United States of America in
accordance with Section 9.1 or 9.5 by reason of any legal proceedings or order
or judgment or any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer's and any Guarantor's
obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article Nine until such time as the Trustee or paying agent is permitted to
apply all such money in accordance with this Article Nine; provided that, if the
Issuer makes any payment of principal of or interest on any such Security
following the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the holders of such Securities to receive such payment from the
money or direct obligations of the United States of America held by the Trustee
or the paying agent.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Shareholders, Officers and Directors of Issuer
and Guarantors Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future shareholder,
officer or director, as such, of the Issuer, any Guarantor or of any successor,
either directly or through the Issuer, such Guarantor or any successor, under
any rule
43
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 of the
Securities by the holders thereof and as part of the consideration for, and as a
condition of, the issue of the Securities.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any person, firm or corporation,
other than the parties hereto and their successors and the Holders of the
Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto and their successors
and of the Holders of the Securities.
SECTION 10.3 Successors and Assigns of Issuer and Guarantors Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer or any Guarantor shall bind
its successors and assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Guarantors, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities if to or on the Issuer, Xxxxxxxxx Xxxxx, 00, Xxxxx Xxxxx, X-0000
Xxxxxxxxxx, Attention: the Managing Directors; if to or on Tyco, The Xxxxxxx
Building, 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx XX00, Xxxxxxx; if to or on any
other Guarantor, such address as may be provided in the supplemental indenture
providing for its Guarantee of the Securities, in each case with a copy to Tyco
(US) Inc. at Xxx Xxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx 00000, Attention: Treasurer,
or other such address as may be set forth by notice to the Trustee and the
Holders as provided in this Section 10.4. Any notice, direction, request or
demand by the Issuer or any Guarantor or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made and received at the Corporate Trust office.
Where this Indenture provides for notice to Holders, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer, any Guarantor
and the Holders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
44
SECTION 10.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate (other than those provided for in Section 3.5 and Section
11.5) or opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the Person making such certificate
or opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with and (d) a
statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays. If the date
of maturity of interest on or principal of the Securities of any series or the
date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and affect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
45
SECTION 10.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture by
operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939
(an "incorporated provision"), such incorporated provision shall control.
SECTION 10.8 New York Law to Govern. This Indenture, each Security and each
Guarantee shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, without regard to principles of the conflict of laws thereof.
SECTION 10.9 Consent to Jurisdiction and Service of Process. Each of the
Issuer and Tyco agrees that any legal suit, action or proceeding brought by any
party to enforce any rights under or with respect to this Indenture, any
Security and any Guarantee or any other document or the transactions
contemplated hereby or thereby may be instituted in any state or federal court
in Xxx Xxxx xx Xxx Xxxx, Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America,
irrevocably waives to the fullest extent permitted by law any objection which it
may now or hereafter have to the laying of venue of any such suit, action or
proceeding, irrevocably waives to the fullest extent permitted by law any claim
that and agrees not to claim or plead in any court that any such action, suit or
proceeding brought in such court has been brought in an inconvenient forum and
irrevocably submits to the non-exclusive jurisdiction of any such court in any
such suit, action or proceeding or for recognition and enforcement of any
judgment in respect thereof.
Each of the Issuer and Tyco hereby irrevocably and unconditionally
designates and appoints CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X. (and any successor entity) as its authorized agent to receive and
forward on its behalf service of any and all process which may be served in any
such suit, action or proceeding in any such court and agrees that service of
process upon CT Corporation shall be deemed in every respect effective service
of process upon the Company in any such suit, action or proceeding and shall be
taken and held to be valid personal service upon the Issuer or Tyco, as the case
may be. Said designation and appointment shall be irrevocable. Nothing in this
Section 10.9 shall affect the right of the Holders to serve process in any
manner permitted by law or limit the right of the Holders to bring proceedings
against the Issuer or Tyco in the courts of any jurisdiction or jurisdictions.
Each of the Issuer and Tyco further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of CT Corporation in
full force and effect so long as the Securities are outstanding. Each of the
Issuer and Tyco hereby irrevocably and unconditionally authorizes and directs CT
Corporation to accept such service on its behalf. If for any reason CT
Corporation ceases to be available to act as such, each of the Issuer and Tyco
agrees to designate a new agent in New York City.
To the extent that the Issuer or Tyco has or hereafter may acquire any
immunity from jurisdiction of any court (including, without limitation, any
court in the United States, the State of New York, Luxembourg, Bermuda or any
political subdivisions thereof) or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property or assets, this
Indenture, the Securities, the Guarantees or any other documents or actions to
enforce judgments in respect of any thereof, the each of the Issuer and Tyco
hereby irrevocably waives such immunity, and any defense based on such immunity,
in respect of its obligations under the above-referenced documents and the
transactions contemplated thereby, to the extent permitted by law.
SECTION 10.10 Judgement Currency. If pursuant to a judgment or order being
46
made or registered against the Issuer or Tyco, any payment under or in
connection with this Indenture, any Securities or any Guarantees to a Holder is
made or satisfied in a currency (the "Judgment Currency") other than in United
States dollars then, to the extent that the payment (when converted into United
States dollars at the rate of exchange on the date of payment or, if it is not
practicable for such Holder to purchase United States dollars with the Judgment
Currency on the date of payment, at the rate of exchange as soon thereafter as
it is practicable for it to do so) actually received by such Holder falls short
of the amount due under the terms of this Indenture, any Securities or any
Guarantees, each of the Issuer and Tyco shall, to the extent permitted by law,
as a separate and independent obligation, indemnify and hold harmless such
Holder against the amount of such short fall and such indemnity shall continue
in full force and effect notwithstanding any such judgment or order as
aforesaid. For the purpose of this Section, "rate of exchange" means the rate at
which the Holder is able on the relevant date to purchase United States dollars
with the Judgment Currency and shall take into account any premium and other
costs of exchange.
SECTION 10.11 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 10.12 Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The provisions of this Article
shall be applicable to any redemption pursuant to Section 12.1 and to the
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.4 for Securities of such series.
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal
47
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit
with the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all the outstanding Securities of a series are to be
redeemed, the Issuer will deliver to the Trustee at least 10 days before the
notice of redemption referred to in the first paragraph of this Section 11.2 is
first mailed to Holders, but no less than 45 days prior to the date fixed for
redemption, an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed in whole or in part. Securities may be redeemed in
part in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
issuer in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities of any series shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
SECTION 11.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.5 and 9.8, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.5 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
the Security.
48
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
such series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by a managing director or by an authorized officer of
the Issuer and delivered to the Trustee at least 40 days prior to the last date
on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b)
an entity specifically identified in such written statement directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any series
is herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities of any
series is herein referred to as an "optional sinking fund payment." The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.8, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the forty-fifth day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee a written statement
(which need not contain the statements required by Section 10.5) signed by a
managing director or by an authorized officer of the Issuer (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of cash
and the portion to be satisfied by credit of Securities of such series, (b)
stating that none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived or
cured) and are continuing and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.11 to the Trustee with
such written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its receipt by
the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
49
such forty-fifth day, to deliver such written statement and Securities specified
in this paragraph, if any, shall not constitute a default but shall constitute,
on and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Issuer shall so request) with respect to the Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of securities of such series at the
sinking fund redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 or less and the Issuer makes no
such request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 11.2, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities
of any series which are (a) owned by the Issuer or an entity known by the
Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Security
register, and not known to the Trustee to have been pledged or hypothecated by
the Issuer or any such entity or (b) identified in an Officers' Certificate at
least 60 days prior to the sinking fund payment date as being beneficially owned
by, and not pledged or hypothecated by, the Issuer or an entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer shall be excluded from Securities of such series
eligible for selection for redemption. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be
given in substantially the manner provided in Section 11.2 (and with the effect
provided in Section 11.3) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking
50
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Four and held for the payment of all
such Securities. In case such Event of Default shall have been waived as
provided in Section 4.9 or the default cured on or before the forty-fifth day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE TWELVE
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
SECTION 12.1 Redemption Upon Changes in Withholding Taxes. The Securities
of any series may be redeemed, as a whole but not in part, at the election of
the Issuer, upon not less than 30 nor more than 60 days notice (which notice
shall be irrevocable), at a redemption price equal to 100% of the principal
amount thereof, together with accrued interest, if any, to the redemption date
and Additional Amounts (as defined in Section 12.2), if any, if as a result of
any amendment to, or change in, the laws or regulations of Luxembourg or any
political subdivision or taxing authority thereof or therein having power to tax
(a "Taxing Authority"), or any change in the application or official
interpretation of such laws or regulations which amendment or change becomes
effective after the date the Securities of such series are issued, the Issuer
has become or will become obligated to pay Additional Amounts, on the next date
on which any amount would be payable with respect to the Securities of such
series, and such obligation cannot be avoided by the use of reasonable measures
available to the Issuer; provided, however, that (a) no such notice of
redemption may be given earlier than 60 days prior to the earliest date on which
the Issuer would be obligated to pay such Additional Amounts, and (b) at the
time such notice of redemption is given, such obligation to pay such Additional
Amounts remains in effect. Prior to the giving of any notice of redemption
described in this paragraph, the Issuer shall deliver to the Trustee (i) an
Officer's Certificate of the Issuer stating that the obligation to pay
Additional Amounts cannot be avoided by the Issuer taking reasonable measures
available to it and (ii) a written opinion of independent legal counsel to the
Issuer of recognized standing to the effect that the Issuer has or will become
obligated to pay Additional Amounts as a result of a change, amendment, official
interpretation or application described above and that the Issuer cannot avoid
the payment of such Additional Amounts by taking reasonable measures available
to it.
SECTION 12.2 Payment of Additional Amounts. All payments made by the
Issuer, Tyco and any other Guarantor under or with respect to the Securities and
the Guarantees will be made free and clear of and without withholding or
deduction for or on account of any present or future taxes, duties, levies,
imposts, assessments or governmental charges of whatever nature imposed or
levied by or on behalf of any Taxing Authority ("Taxes"), unless the Issuer,
Tyco or such Guarantor, as the case may be, is required to withhold or deduct
Taxes by law or by the interpretation or administration thereof. In the event
that the Issuer, Tyco or such Guarantor is required to so withhold or deduct any
amount for or on account of any Taxes from any payment made under or with
respect to the Securities or the Guarantees, as the case may be, the Issuer,
Tyco or such Guarantor, as the case may be, will pay such additional amounts
("Additional Amounts") as may be necessary so that the net amount received by
each Holder of Securities (including Additional Amounts) after such withholding
or deduction will equal the amount that such Holder would have received if such
Taxes had not been required to be withheld or deducted; provided that no
Additional Amounts will be payable with respect to a payment made to a Holder of
Securities to the extent:
(a) that any such Taxes would not have been so imposed but for the
existence of any present or former connection between such Holder and the
Taxing Authority imposing
51
such Taxes (other than the mere receipt of such payment, acquisition,
ownership or disposition of such Securities or the exercise or enforcement
of rights under such Securities, the Guarantees or this Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or personal
property Tax imposed with respect to such Securities, except as otherwise
provided herein;
(c) that any such Taxes would not have been so imposed but for the
presentation of such Securities (where presentation is required) for
payment on a date more than 30 days after the date on which such payment
became due and payable or the date on which payment thereof is duly
provided for, whichever is later, except to the extent that the beneficiary
or Holder thereof would have been entitled to Additional Amounts had the
Securities been presented for payment on any date during such 30-day
period; or
(d) that such Holder would not be liable or subject to such
withholding or deduction of Taxes but for the failure to make a valid
declaration of non-residence or other similar claim for exemption, if (x)
the making of such declaration or claim is required or imposed by statute,
treaty, regulation, ruling or administrative practice of the relevant
Taxing Authority as a precondition to an exemption from, or reduction in,
the relevant Taxes, and (y) at least 60 days prior to the first payment
date with respect to which the Issuer, Tyco or such Guarantor shall apply
this clause (d), the Issuer, Tyco or such Guarantor shall have notified all
Holders of Securities in writing that they shall be required to provide
such declaration or claim.
The Issuer, Tyco or such Guarantor, as applicable, will also (i) make such
withholding or deduction of Taxes and (ii) remit the full amount of Taxes so
deducted or withheld to the relevant Taxing Authority in accordance with all
applicable laws. The Issuer, Tyco or such Guarantor, as applicable, will use
their reasonable best efforts to obtain certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld from each Taxing
Authority imposing such Taxes. The Issuer, Tyco or such Guarantor, as the case
may be, will, upon request, make available to the Holders of the Securities,
within 60 days after the date the payment of any Taxes so deducted or withheld
is due pursuant to applicable law, certified copies of tax receipts evidencing
such payment by the Issuer, Tyco or such Guarantor or if, notwithstanding the
Issuer's, Tyco's or such Guarantor's efforts to obtain such receipts, the same
are not obtainable, other evidence of such payments by the Issuer, Tyco or such
Guarantor.
At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Issuer, Tyco or such
Guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Issuer, Tyco or such Guarantor will deliver to the Trustee an
Officers' Certificate stating the fact that such Additional Amounts will be
payable, the amounts so payable and will set forth such other information as is
necessary to enable such Trustee to pay such Additional Amounts to Holders of
Securities on the payment date.
The foregoing provisions shall survive any termination of the discharge of
this Indenture and shall apply mutatis mutandis to any jurisdiction in which any
successor Person to the Issuer, Tyco or such Guarantor, as the case may be, is
organized or is engaged in business for tax purposes or any political
subdivisions or taxing authority or agency thereof or therein.
In addition, the Issuer will pay any stamp, issue, registration,
documentary or other similar taxes and duties, including interest, penalties and
Additional Amounts with respect thereto, payable in Luxembourg or the United
States or any political subdivision or taxing authority of or in the foregoing
in respect of the creation, issue, offering, enforcement, redemption or
retirement of the
52
Securities.
Whenever in this Indenture or the Securities there is mentioned, in any
context, the payment of principal, redemption price, interest or any other
amount payable under or with respect to any Security, such mention shall be
deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof.
ARTICLE THIRTEEN
GUARANTEES
SECTION 13.1 Guarantee. Except as otherwise provided herein, Tyco and each
Person that becomes a Guarantor after the date of this Indenture (collectively
with Tyco, the "Guarantors") hereby, jointly and severally, fully and
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee, and to the Trustee on behalf of such Holder, the due
and punctual payment of the principal of and interest on such Security when and
as the same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption or otherwise, in accordance with the terms of
such Security and of this Indenture. In case of the failure of the Issuer
punctually to make any such payment, each Guarantor hereby, jointly and
severally, agrees to cause such payment to be made punctually when and as the
same shall become due and payable, whether at the stated maturity or by
acceleration, call for redemption or otherwise, and as if such payment were made
by the Issuer.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be absolute and unconditional, irrespective of, and
shall be unaffected by, the validity, regularity or enforceability of such
Security or this Indenture, the absence of any action to enforce the same or any
release, amendment, waiver or indulgence granted to the Issuer or any guarantor
or any consent to departure from any requirement of any other guarantee of all
or any of the Securities or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each of the Guarantors hereby waives the benefits of diligence, presentment,
demand for payment, any requirement that the Trustee or any of the Holders
protect, secure, perfect or insure any security interest in or other lien on any
property subject thereto or exhaust any right or take any action against the
Issuer or any other Person or any collateral, filing of claims with a court in
the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to such
Security or the Indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged in respect of such Security
except by complete performance of the obligations contained in such Security and
in such Guarantee. Each Guarantor agrees that if, after the occurrence and
during the continuance of an Event of Default, the Trustee or any of the Holders
are prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, such Guarantor agrees to pay to the Trustee for the account of
the Holders, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
Each Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Guarantee is endorsed against the Issuer in respect of
any amounts paid by such Guarantor on account of such Security pursuant to the
provisions of its Guarantee or this Indenture; provided, however, that no
Guarantor shall be entitled to enforce or to receive any payment arising out of,
or based upon, such right of subrogation until the principal of and interest
53
on all Securities issued hereunder shall have been paid in full.
Each Guarantor that makes or is required to make any payment in respect of
its Guarantee shall be entitled to seek contribution from the other Guarantors
to the extent permitted by applicable law; provided, however, that no Guarantor
shall be entitled to enforce or receive any payments arising out of, or based
upon, such right of contribution until the principal of and interest on all
Securities issued hereunder shall have been paid in full.
Each Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Issuer for liquidation
or reorganization, should the Issuer become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any part of the Issuer's assets, and shall, to the fullest extent permitted by
law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Securities, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
Holder of the Securities, whether as a "voidable preference," "fraudulent
transfer," or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
Any term or provision of any Guarantee to the contrary notwithstanding, the
aggregate amount of the obligations guaranteed hereunder shall be reduced to the
extent necessary to prevent such Guarantee from violating or becoming voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
SECTION 13.2 Execution and Delivery of Guarantees. The Guarantees to be
endorsed on the Securities shall include the terms of the Guarantee set forth in
Section 13.1 and any other terms that may be set forth in the form established
pursuant to Section 2.2. Each of the Guarantors hereby agrees to execute its
Guarantee, in a form established pursuant to Section 2.2, to be endorsed on each
Security authenticated and delivered by the Trustee.
The Guarantee shall be executed on behalf of each respective Guarantor by
any one of such Guarantor's chairman of the Board of Directors, president, vice
presidents or other person duly authorized by the Board of Directors of such
Guarantor, attested by its secretary or assistant secretary. The signature of
any or all of these persons on the Guarantee may be manual or facsimile.
A Guarantee bearing the manual or facsimile signature of individuals who
were at any time the proper officers of a Guarantor shall bind such Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of the Security on which such
Guarantee is endorsed or did not hold such offices at the date of such
Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantors and shall bind each Guarantor
notwithstanding the fact that Guarantee does not bear the signature of such
Guarantor. Each of the Guarantors hereby jointly and severally agrees that its
Guarantee set forth in Section 13.1 and in the form of Guarantee established
pursuant to Section 2.2 shall remain in full force and effect notwithstanding
any failure to endorse a Guarantee on any Security.
54
SECTION 13.3 Release of Guarantees. Notwithstanding anything in this
Article Thirteen to the contrary, concurrently with the payment in full of the
principal of, premium, if any, and interest on the Securities, the Guarantors
shall be released from and relieved of their obligations under this Article
Thirteen. Upon the delivery by the Issuer to the Trustee of an Officers'
Certificate and, if requested by the Trustee, an Opinion of Counsel to the
effect that the transaction giving rise to the release of this Guarantee was
made by the Issuer in accordance with the provisions of this Indenture and the
Securities, the Trustee shall execute any documents reasonably required in order
to evidence the release of the Guarantors from their obligations under this
Guarantee. If any of the obligations to pay the principal of, premium, if any,
and interest on the Securities are revived and reinstated after the termination
of this Guarantee, then all of the obligations of the Guarantors under this
Guarantee shall be revived and reinstated as if this Guarantee had not been
terminated until such time as the principal of, premium, if any, and interest on
the Securities are paid in full, and each Guarantor shall enter into an
amendment to this Guarantee, reasonably satisfactory to the Trustee, evidencing
such revival and reinstatement.
This Guarantee shall terminate with respect to the applicable Guarantor and
shall be automatically and unconditionally released and discharged as provided
in Section 3.11(b).
SECTION 13.4 Additional Guarantors. A Subsidiary shall become a Guarantor
with respect to the Securities, as contemplated by Section 3.11(a), by executing
and delivering to the Trustee (a) a supplemental indenture, in form and
substance satisfactory to the Trustee, which subjects such Person to the
provisions (including the representations and warranties) of this Indenture as a
Guarantor and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and such
supplemental indenture and such Person's obligations under its Guarantee and
this Indenture constitute the legal, valid, binding and enforceable obligations
of such Person (subject to such customary exceptions concerning creditors'
rights and equitable principles as may be acceptable to the Trustee in its
discretion).
55
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of ________ __, 1998.
TYCO INTERNATIONAL GROUP S.A., as Issuer
By:
-------------------------------------
Name:
Title:
TYCO INTERNATIONAL LTD., as Guarantor
By:
-------------------------------------
Name:
Title:
Attest:
By:
------------------------------
THE BANK OF NEW YORK, as Trustee
By:
-------------------------------------
Name:
Title:
Attest:
By:
------------------------------
56
