EXHIBIT 4.1
Form of Guaranty
1. GUARANTY. Except as otherwise provided herein, Tyco Capital Ltd. (the
"Guarantor") hereby fully and unconditionally guarantees to each registered
holder (a "Holder") of a 5 7/8% Note due October 15, 2008 (each a "Security")
authenticated and delivered by the Trustee (as defined below), and to the
Trustee on behalf of such Holder, the due and punctual payment of the principal
of and interest on such Security and all other obligations of Tyco Capital
Corporation (the "Issuer") under the Indenture dated as of September 24, 1998
(the "Indenture") between the Issuer and [_______] as trustee (the "Trustee")
when and as the same shall become due and in accordance with the terms of such
Security and of the Indenture. The Guarantor hereby fully and unconditionally
also guarantees to the Trustee the due and punctual payment of all obligations
of the Issuer to the Trustee under this Indenture. In case of the failure of the
Issuer punctually to make any such payment, the Guarantor hereby 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.
The Guarantor hereby 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 the Indenture, the
absence of any action to enforce the same or any release, amendment, waiver or
indulgence granted to the Issuer or the 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. The Guarantor 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 (as defined in the
Indenture) 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 Guaranty will not be discharged in respect of such Security except by
complete performance of the obligations contained in such Security and in this
Guaranty. The Guarantor agrees that the Holders are prevented by applicable law
from exercising their respective rights to accelerate any other right or remedy
with respect to the Securities, the 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.
The Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which this Guaranty is endorsed as set forth below against the
Issuer in respect of any amounts paid by the Guarantor on account of such
Security pursuant to the provisions of this Guaranty or the Indenture; provided,
however, that the Guarantor shall not 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 on all Securities issued hereunder shall have been
paid in full.
This Guaranty 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 any 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 by 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 this Guaranty to the contrary notwithstanding,
the aggregate amount of the obligations guaranteed hereunder shall be reduced to
the extent necessary to prevent this Guaranty from violating or becoming
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.
2. EXECUTION AND DELIVERY OF NOTE GUARANTEES. The Guaranty to be endorsed on
the Securities (collectively, the "Note Guarantees") shall include the terms of
this Guaranty set forth in Section 1 and shall be substantially in the form
attached hereto as Annex A. The Guarantor hereby agrees to execute a Note
Guaranty, in a form established pursuant to Annex A to be endorsed on each
Security authenticated and delivered by the Trustee after the date hereof.
Each Note Guaranty shall be executed on behalf of the Guarantor by any one
of the Guarantor's chairman of the Board of Directors, president, vice
presidents or other person duly authorized by the Board of Directors of the
Guarantor. The signature of any or all of these persons on each Note Guaranty
may be manual or facsimile.
A Note Guaranty bearing the manual or facsimile signature of individuals
who were at any time the proper officers of the Guarantor shall bind the
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 the Note Guaranty is endorsed or did not hold such offices at the date of
such Note Guaranty.
The delivery of any Security by the Trustee, after the authentication
thereof under the Indenture, shall constitute due delivery of the Note Guaranty
endorsed thereon on behalf of the Guarantor and shall bind the Guarantor
notwithstanding the fact that the Note Guaranty does not bear the signature of
the Guarantor. The Guarantor hereby agrees that its Guaranty set forth in
Section 1 and in the form of Note Guarantee established pursuant to Annex A
shall remain in full force and effect notwithstanding any failure to endorse a
Note Guaranty on any Security.
3. RELEASE OF GUARANTY. Notwithstanding anything in this Guaranty to the
contrary,
concurrently with the payment in full of the principal of, premium, if any, and
interest on the Securities, the Guarantor shall be released from and relieved of
its obligations under this Guaranty. Upon the delivery by the Issuer to the
Trustee of any Officers' Certificate (as defined in the Indenture) and an
Opinion of Counsel (as defined in the Indenture) to the effect that the
transaction giving rise to the release of this Guaranty was made by the Issuer
in accordance with the provisions of the Indenture and the Securities, the
Trustee shall execute any documents reasonably required in order to evidence the
release of the Guarantor from its obligations under this Guaranty. If any of the
obligations to pay the principal of, premium, if any, and interest on the
Securities and all other obligations of the Issuer are revived and reinstated
after the termination of this Guaranty, then all of the obligations of the
Guarantor under this Guaranty shall be revived and reinstated as if this
Guaranty had not been terminated until such time as the principal of, premium,
if any, and interest on the Securities are paid in full, and the Guarantor shall
enter into an amendment to this Guaranty, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.
4. GOVERNING LAW. This Guarantee shall be governed by, and construed in
accordance with, the laws of New York
TYCO CAPITAL LTD.
By: ______________________
Name:
Title:
Annex A
GUARANTEE
For value received, Tyco Capital Ltd. hereby absolutely, unconditionally
and irrevocably guarantees to the holder of this Security the payment of
principal of, premium if any, and interest on the Security upon which this
Guarantee is endorsed in the amounts and at the time when due and payable
whether by declaration thereof, or otherwise, and interest on the overdue
principal and interest, if any, of such 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 such Security and the Trustee, all in accordance
with and subject to the terms and limitations of such Security and the
Indenture. This Guarantee will not become effective until the 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:
