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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 June 9, 1998
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TABLE OF CONTENTS
Page
ARTICLE ONE: DEFINITIONS.........................................................................................1
SECTION 1.1 Certain Terms Defined.......................................................................1
ARTICLE TWO: SECURITIES..........................................................................................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
SECTION 2.14 CUSIP Numbers.............................................................................15
ARTICLE THREE: COVENANTS OF THE ISSUER AND THE TRUSTEE ........................................................15
SECTION 3.1 Payment of Principal and Interest..........................................................15
SECTION 3.2 Offices for Payments, etc..................................................................16
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...............................................17
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.........................................................................21
ARTICLE FOUR: REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT .................................21
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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..............................24
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....................................................27
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
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SECTION 4.9 Control by Securityholders.................................................................27
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: CONCERNING THE TRUSTEE ..........................................................................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...................................32
SECTION 5.5 Moneys Held by Trustee.....................................................................32
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................................................33
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee..................................33
SECTION 5.10 Acceptance of Appointment by Successor Trustee............................................34
SECTION 5.11 Appointment of Co-Trustee.................................................................35
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business of Trustee....................36
ARTICLE SIX: CONCERNING THE SECURITYHOLDERS ...................................................................36
SECTION 6.1 Evidence of Action Taken by Securityholders................................................36
SECTION 6.2 Proof of Execution of Instruments and of Holding of Securities; Record Date................36
SECTION 6.3 Holders to be Treated as Owners............................................................37
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding..........................................37
SECTION 6.5 Right of Revocation of Action Taken........................................................37
ARTICLE SEVEN: SUPPLEMENTAL INDENTURES..........................................................................38
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders.................................38
SECTION 7.2 Supplemental Indentures With Consent of Securityholders....................................39
SECTION 7.3 Effect of Supplemental Indenture...........................................................40
SECTION 7.4 Documents to Be Given to Trustee...........................................................40
SECTION 7.5 Notation on Securities in Respect of Supplemental Indentures...............................40
ARTICLE EIGHT: CONSOLIDATION, MERGER, SALE OR CONVEYANCE........................................................40
SECTION 8.1 Issuer and Guarantors May Consolidate, etc., on Certain Terms..............................41
SECTION 8.2 Successor Entity Substituted...............................................................41
SECTION 8.3 Opinion of Counsel to Trustee..............................................................41
SECTION 8.4 Exception Applicable to Certain Guarantors.................................................42
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ARTICLE NINE: SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.........................................42
SECTION 9.2 Issuer's Option to Effect Defeasance or Covenant Defeasance................................43
SECTION 9.3 Defeasance and Discharge...................................................................43
SECTION 9.4 Covenant Defeasance........................................................................43
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance............................................43
SECTION 9.6 Application by Trustee of Funds Deposited for Payment of Securities........................45
SECTION 9.7 Repayment of Moneys Held by Paying Agent...................................................45
SECTION 9.8 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years..................45
SECTION 9.9 Indemnity for Direct Obligations of the United States......................................46
SECTION 9.10 Reinstatement.............................................................................46
ARTICLE TEN: MISCELLANEOUS PROVISIONS...........................................................................46
SECTION 10.1 Incorporators, Shareholders, Officers and Directors of Issuer and Guarantors
Exempt from Individual Liability.....................................................46
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders...............46
SECTION 10.3 Successors and Assigns of Issuer and Guarantors Bound by Indenture........................47
SECTION 10.4 Notices and Demands on Issuer, Guarantors Trustee and Securityholders.....................47
SECTION 10.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein........48
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays...........................................48
SECTION 10.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939...................49
SECTION 10.8 New York Law to Govern....................................................................49
SECTION 10.8 Consent to Jurisdiction and Service of Process............................................49
SECTION 10.8 Judgment Currency.........................................................................50
SECTION 10.9 Counterparts..............................................................................50
SECTION 10.10 Effect of Headings.......................................................................50
ARTICLE ELEVEN: REDEMPTION OF SECURITIES AND SINKING FUNDS......................................................50
SECTION 11.1 Applicability of Article..................................................................50
SECTION 11.2 Notice of Redemption; Partial Redemptions.................................................50
SECTION 11.3 Payment of Securities Called for Redemption...............................................51
SECTION 11.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption.............52
SECTION 11.5 Mandatory and Optional Sinking Funds......................................................52
ARTICLE TWELVE: ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS......................................................54
SECTION 12.1 Redemption Upon Changes in Withholding Taxes..............................................54
SECTION 12.2 Payment of Additional Amounts.............................................................54
ARTICLE THIRTEEN: GUARANTEES....................................................................................56
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SECTION 13.1 Guarantee.................................................................................56
SECTION 13.2 Execution and Delivery of Guarantees......................................................57
SECTION 13.3 Release of Guarantees.....................................................................58
SECTION 13.4 Additional Guarantors.....................................................................58
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THIS INDENTURE, dated as of June 9, 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
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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
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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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, 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 upon 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 canceled 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 Issuer, 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, including, without
limitation, an offer to exchange such Indebtedness for securities of the Issuer,
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,
limited liability company,
5
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political 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 any
vice president, the treasurer, any trust officer, any assistant trust officer,
any assistant vice president, 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.
"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
6
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
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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 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 Article
Thirteen of 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.
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Dated:
TYCO INTERNATIONAL LTD.
By:
--------------------------
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;
(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
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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
director the secretary or any assistant secretary of the Issuer;
(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;
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(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.
Notwithstanding the provisions of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not
be necessary to deliver an Opinion of Counsel otherwise required pursuant to
such preceding paragraph at or prior to the authentication of such Security of
such series if an Opinion of Counsel is delivered at or prior to the
authentication upon original issuance of the first Security of such series to be
issued and reasonably contemplates such authentication of each such Security.
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 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, 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 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.
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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 for each series of Securities 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 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 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.
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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, any Guarantor, 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, any Guarantor and to the Trustee and any
agent of the Issuer, such Guarantor 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 Trustee and any Guarantor) connected therewith. In case
any security which has matured or is about to mature or has been called for
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
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applicant for such payment shall furnish to the Issuer, the Guarantors and to
the Trustee and any agent of the Issuer, the Guarantors or 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 canceled 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 dispose of canceled Securities held by it in
accordance with its policy of disposal or, upon the written request of the
Issuer, deliver such canceled Securities 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, the Guarantors
shall endorse 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,
endorsed by the Guarantors 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.
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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
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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, the Guarantors will endorse 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 canceled 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.
SECTION 2.14 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer will
promptly notify the Trustee of any change in the "CUSIP" numbers.
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, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
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.
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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 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
16
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 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 and Tyco are 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 Person existing at
the same time such Person becomes a Restricted Subsidiary unless created in
contemplation of such Restricted Subsidiary becoming such;
(c) liens on any assets or Indebtedness of a Person existing at the
time such Person is merged into the Issuer or a Restricted 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 any
Restricted Subsidiary;
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(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 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
18
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;
(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.
19
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 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 or any
Additional Amounts in respect of 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
20
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 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 (e), 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 or 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
21
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 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
22
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 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
23
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 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
24
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 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,
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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.
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.
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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 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
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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.
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(treated as one class), (e), (g)
or (h) of Section 4.1, 10% in aggregate principal amount of all Securities
Outstanding (treated as one class), 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.
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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 (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 or security against
29
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. Whether or not
therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
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, 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
30
(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.
(h) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities, this Indenture or
other information related to the Securities.
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.
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, its agents 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,
agent or such predecessor trustee. The obligations of the Issuer under this
Section to compensate and indemnify the Trustee, its agents 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
31
indebtedness shall be a lien senior to that of the Securities
upon all property and funds held 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 lien.
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 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
32
(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 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
33
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 Appointment of Co-Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of any trust created under this Indenture may at the time be
located, the Trustee shall have the power and may execute and deliver all
instruments necessary to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees and to vest in such Person
or Persons, in such capacity and for the benefit of the Holders, such powers,
duties, obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 5.13 and no notice
to Holders of the appointment of any co-trustee or separate trustee shall be
required under Section 5.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to any trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this
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Indenture and the conditions of this Article Five. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 5.12 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 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
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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.
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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 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
36
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.
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
37
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 2.4;
(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 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
38
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 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 entity, or the
successor entity 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
39
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 Entity 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 entity, and following such an
assumption by the successor entity, such successor entity 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 entity 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 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
entity 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 entity 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 entity which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture, the
Securities and any Guarantee 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).
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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 Section 9.8) or direct obligations of the United States of
America, backed by its full faith and credit, or a combination of cash and such
direct obligations, 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
41
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 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, 3.12 and Article 8 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)
42
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) 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
43
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 Luxembourg 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
Luxembourg 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 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 or any Guarantor, as applicable and
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer or such Guarantor
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 or such Guarantor 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
44
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 or any Guarantor makes any
payment of principal of or interest on any such Security following the
reinstatement of its obligations, the Issuer or such Guarantor 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 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 (i) by the Trustee shall be in
writing and be deposited postage prepaid in first class mail, delivered by a
nationally recognized overnight courier or transmitted by facsimile or (ii)
by the Holders of Securities shall be in writing and deposited postage
prepaid in first class mail or delivered by a nationally recognized overnight
courier, if to or on the Issuer, to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Attention: the Managing Directors, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇;
if to or on Tyco, to The ▇▇▇▇▇▇▇ Building, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Secretary, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇;
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 ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Treasurer, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, or other such
address as may be set forth by notice to the Trustee and the Holders as
provided in this Section
45
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 or delivered by a nationally recognized
courier, to each Holder entitled thereto, at his last address as it appears in
the Security register. Neither the failure to mail or deliver any notice to
Holders, nor any defect in any notice so mailed or delivered, 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 or courier service, it shall be impracticable to mail or deliver 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.
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
or any Guarantor to the Trustee to take any action under any of the provisions
of this Indenture, the Issuer or such Guarantor 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 or
any Guarantor 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 or such Guarantor, upon the
certificate, statement or opinion of or representations by an officer of
officers of the Issuer or such Guarantor, as the case may be, 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
46
are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
any Guarantor 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 or such Guarantor, as the case
may be, 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.
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 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇.▇.▇. (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 Issuer 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
47
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 Judgment Currency. If pursuant to a judgment or order
being 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 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.
48
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 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 45 days
prior to the date fixed for redemption (unless a shorter period shall be
satisfactory to the Trustee), 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
49
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.
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.
50
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 and, (c) 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). Failure of the Issuer, on or before any 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
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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 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
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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 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
53
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 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 Subsidiary 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 and all
other obligations of the Issuer under this Indenture 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. Each Guarantor hereby, jointly and severally, 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, 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
54
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 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 shall be substantially 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
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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. 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.
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 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 and all other obligations of the Issuer 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 reasonably 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.
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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 June __, 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:
----------------------
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