<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 28, 1998
FILE NOS. 333-50855
AND 333-50855-01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
TYCO INTERNATIONAL LTD. TYCO INTERNATIONAL GROUP S.A.
(Exact name of registrant as specified (Exact name of registrant as specified
in its charter) in its charter)
BERMUDA LUXEMBOURG
(State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or organization)
NOT APPLICABLE NOT APPLICABLE
(IRS Employer (IRS Employer
Identification No.) Identification No.)
THE GIBBONS BUILDING BOULEVARD ROYAL, 26
10 QUEEN STREET, SUITE 301 SIXTH FLOOR
HAMILTON HM11, BERMUDA L-2449 LUXEMBOURG
(441) 292-8674 (352) 22-9999-5204
(Address, including zip code, and (Address, including zip code, and
telephone number, including telephone number, including
area code, of registrant principal area code, of registrant principal
executive offices) executive offices)
</TABLE>
------------------------
MARK H. SWARTZ
C/O TYCO INTERNATIONAL (US) INC.
ONE TYCO PARK
EXETER, NEW HAMPSHIRE 03833
(603) 778-9700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
*The executive offices of the Registrants' principal U.S. subsidiary, Tyco
International (US) Inc., are located at One Tyco Park, Exeter, New Hampshire
03833, and its telephone number is (603) 778-9700.
------------------------------
COPIES TO:
JOSHUA M. BERMAN, ESQ.
KRAMER, LEVIN, NAFTALIS & FRANKEL
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 715-9100
Approximate date of commencement of proposed sale to the public: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
(CALCULATION OF REGISTRATION FEE ON FOLLOWING PAGE)
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE (1) FEE
<S> <C> <C> <C> <C>
Debt Securities $3,750,000,000(2) 100% $3,750,000,000 $1,106,250(4)
Guarantees (3) (3) (5)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended, and
exclusive of accrued interest, if any.
(2) The aggregate principal amount of the Debt Securities to be issued may be
increased, if any Debt Securities are issued at an original issue discount,
by an amount such that the net proceeds to be received by Tyco International
Group S.A. shall be equal to the above amount to be registered. Any offering
of Debt Securities denominated other than in U.S. dollars will be treated as
the equivalent in U.S. dollars based on the exchange rate applicable to the
purchase of such Debt Securities from Tyco International Group S.A.
(3) No separate consideration will be received for the Guarantees.
(4) The amount of registration fee, calculated in accordance with Section 6(b)
of the Securities Act of 1933, as amended, and Rule 457(o) promulgated
thereunder, is 0.000295 of the maximum aggregate offering price at which the
Debt Securities registered pursuant to this Registration Statement are
proposed to be offered and has been previously paid.
(5) Under Rule 457(n), no fee is payable with respect to the Guarantees.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO THE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 28, 1998
PROSPECTUS
$3,750,000,000
----------------
TYCO INTERNATIONAL GROUP S.A.
-------------
DEBT SECURITIES
----------------
FULLY AND UNCONDITIONALLY GUARANTEED BY
TYCO INTERNATIONAL LTD.
------------------
Tyco International Group S.A., a Luxembourg company (the "Company"), may
offer from time to time unsecured debt securities ("Debt Securities") consisting
of debentures, notes and/or other evidences of unsecured indebtedness in one or
more series, at an aggregate initial offering price not to exceed
U.S.$3,750,000,000, or its equivalent if some or all of the Debt Securities are
denominated in one or more foreign currencies, at prices and on terms to be
determined at or prior to the time of sale in light of market conditions at the
time of sale. Debt Securities may be issued in registered form without coupons
("Registered Securities"), bearer form with or without coupons attached ("Bearer
Securities") or in the form of one or more global securities (each a "Global
Security"). Unless otherwise specified in the Prospectus Supplement, all Debt
Securities will be fully and unconditionally guaranteed as to payment of
principal, premium, if any, and interest by Tyco International Ltd. ("Tyco"),
the sole shareholder of the Company. Guarantees of the Debt Securities (the
"Guarantees") by Tyco will constitute unsecured and unsubordinated obligations
of Tyco.
Specific terms of the particular Debt Securities in respect of which this
Prospectus is being delivered will be set forth in one or more accompanying
Prospectus Supplements (each a "Prospectus Supplement"), together with the terms
of the offering of the Debt Securities and the initial price and the net
proceeds to the Company from the sale thereof. The Prospectus Supplement will
set forth with regard to the particular Debt Securities, without limitation, the
following: the specific designation, aggregate principal amount, ranking as
senior debt or subordinated debt, authorized denomination, maturity, rate or
method of calculation of interest and dates for payment thereof, any
exchangeability, conversion, redemption, prepayment or sinking fund provisions,
the currency or currencies or currency unit or currency units in which
principal, premium, if any, or interest is payable, any modification of the
covenants and any other specific terms thereof. The amounts payable by the
Company in respect of Debt Securities may be calculated by reference to the
value, rate or price of one or more specified commodities, currencies or indices
as set forth in the Prospectus Supplement. The Prospectus Supplement will also
contain, where applicable, relevant tax considerations relating to the holders
of Debt Securities covered by the Prospectus Supplement.
The Company may sell Debt Securities offered hereby to or through
underwriters or dealers, and also may sell Debt Securities directly to other
purchasers or through agents. The Prospectus Supplement will also set forth the
names of the underwriters, dealers and agents involved in the sale of the Debt
Securities offered hereby, the principal amounts, if any, to be purchased by the
underwriters or agents and the compensation, if any, of such underwriters or
agents and any applicable commissions or discounts. The net proceeds to the
Company from the sale of the Debt Securities offered hereby will also be set
forth in the Prospectus Supplement.
<PAGE>
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------------------
The date of this Prospectus is , 1998.
<PAGE>
No person has been authorized to give any information or to make any
representation not contained or incorporated by reference in this Prospectus or
the accompanying Prospectus Supplement and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Company, Tyco or any underwriter, dealer or agent. Neither the delivery of this
Prospectus or the accompanying Prospectus Supplement nor any sale made hereunder
or thereunder shall, under any circumstances, create an implication that the
information contained herein or in the accompanying Prospectus Supplement is
correct as of any date subsequent to the date hereof or thereof or that there
has been no change in the affairs of the Company or Tyco since the date hereof
or thereof. Neither this Prospectus nor the accompanying Prospectus Supplement
constitutes an offer to sell or a solicitation of an offer to buy Debt
Securities in any jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make such offer or
solicitation.
AVAILABLE INFORMATION
Tyco is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"), all of which may be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the following
Regional Offices of the Commission: Chicago Regional Office, Suite 1400,
Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois 60661;
and New York Regional Office, Seven World Trade Center, 13th Floor, New York,
New York 10048. Copies of such material can be obtained at prescribed rates from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549. The Commission maintains a site on the
World Wide Web, and the reports, proxy statements and other information filed by
Tyco with the Commission may be accessed electronically on the Web at
http://www.sec.gov. Such material may also be inspected at the offices of the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, where
Tyco's common shares, par value U.S.$0.20 per share ("Common Shares"), are
listed.
This Prospectus constitutes part of a Registration Statement on Form S-3
filed by the Company and Tyco (together with all amendments, schedules and
exhibits thereto, the "Registration Statement") with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus omits
certain of the information contained in the Registration Statement in accordance
with the rules and regulations of the Commission. Reference is hereby made to
the Registration Statement and related exhibits for further information.
Statements contained herein concerning the provisions of any document are not
necessarily complete and, in each instance, where a copy of such document has
been filed as an exhibit to the Registration Statement or otherwise has been
filed with the Commission, reference is made to the copy of the applicable
document so filed. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed by Tyco with the Commission
pursuant to the Exchange Act, are hereby incorporated by reference in this
Prospectus:
1. Tyco's Transition Report on Form 10-K for the fiscal year ended
September 30, 1997.
2. Tyco's Transition Report on Form 10-K/A for the fiscal year ended
September 30, 1997.
3. Tyco's Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 1997.
4. Tyco's Current Report on Form 8-K filed on March 6, 1998.
5. Tyco's Current Report on Form 8-K filed on March 11, 1998.
6. Tyco's Current Report on Form 8-K filed on April 23, 1998.
2
<PAGE>
All documents filed by Tyco with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of Debt Securities made hereby
shall be deemed to be incorporated by reference into this Prospectus from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
Tyco and the Company will provide without charge to each person to whom a
copy of this Prospectus is delivered, including any beneficial owner of Debt
Securities, upon the written or oral request of any such person, a copy of any
and all of the documents that have been or may be incorporated by reference
herein other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Such requests
should be directed to J. Brad McGee, Senior Vice President, Tyco International
(US) Inc., One Tyco Park, Exeter, New Hampshire 03833 (telephone: (603)
778-9700).
TYCO INTERNATIONAL LTD.
Tyco International Ltd., a Bermuda company ("Tyco"), through its
subsidiaries, is a diversified manufacturing and service company that operates
in four segments: (i) the design, manufacture and distribution of disposable
medical supplies and other specialty products, and the conduct of vehicle
auctions and related services; (ii) the design, manufacture, installation and
service of fire detection and suppression systems, and the installation,
monitoring and maintenance of electronic security systems; (iii) the design,
manufacture and distribution of flow control products; and (iv) the design,
manufacture and distribution of electrical and electronic components, and the
design, manufacture, installation and service of undersea cable communication
systems.
Tyco's strategy is to be the low-cost, high quality producer and provider in
each of its markets. It promotes its leadership position by investing in
existing businesses, developing new markets and acquiring complementary
businesses and products. Combining the strengths of its existing operations and
its business acquisitions, Tyco seeks to enhance shareholder value through
increased earnings per share and strong cash flows.
On July 2, 1997, Tyco International Ltd., a Massachusetts corporation
("Former Tyco"), merged with a subsidiary of Tyco, with Tyco being the
continuing public company. In connection with the merger, Tyco changed its name
from ADT Limited ("ADT") to Tyco International Ltd.
Tyco's registered and principal executive offices are located at The Gibbons
Building, 10 Queen Street, Hamilton HM11, Bermuda, and its telephone number is
(441) 292-8674. The executive offices of Tyco's principal United States
subsidiary, Tyco International (US) Inc., are located at One Tyco Park, Exeter,
New Hampshire 03833, and its telephone number is (603) 778-9700.
THE COMPANY
Tyco International Group S.A., a Luxembourg company (the "Company"), is a
direct wholly-owned subsidiary of Tyco. The registered and principal executive
offices of the Company are located at Boulevard Royal, 26, Sixth Floor, L-2449
Luxembourg, and its telephone number is (352) 22-9999-5204. Through its
subsidiaries, the Company owns substantially all of the assets, and engages in
substantially all of the businesses, owned or engaged in by Tyco.
3
<PAGE>
CURRENT DEVELOPMENTS
In March 1998, Tyco sold 25.3 million Common Shares in a public offering at
$50.75 per share. The net proceeds from the sale were used to repay indebtedness
incurred for previous acquisitions. On April 20, 1998, Tyco announced that a
definitive agreement was signed by a subsidiary of Tyco to acquire the Wells
Fargo Alarm business of Borg-Warner Security Corporation for $425 million in
cash.
Tyco and its subsidiaries review acquisition opportunities in the ordinary
course of its business, some of which may be material and some of which are
currently under investigation, discussion or negotiation. There can be no
assurance that any of such acquisitions will be consummated.
TYCO'S RESULTS FOR THE SECOND QUARTER AND SIX MONTHS ENDED MARCH 31, 1998
On April 21, 1998, Tyco announced results of operations for the second
quarter (the "fiscal 1998 second quarter") and the six months ended March 31,
1998. These results, which are presented below, include the security operations
of ADT Limited ("ADT"; now Tyco), Keystone International, Inc. ("Keystone"), and
INBRAND Corporation ("INBRAND"). The merger transactions involving these
entities occurred in fiscal 1997 and were accounted for as a pooling of
interests. Accordingly, the results reflect the operations of ADT, Keystone and
INBRAND for all periods presented, except for the periods prior to January 1,
1997 which do not include INBRAND due to immateriality.
Diluted earnings per share before extraordinary items increased 66% to $0.48
per share for the fiscal 1998 second quarter, compared to $0.29 for the quarter
ended March 31, 1997. Income before extraordinary items increased 88% to $276.2
million in the fiscal 1998 second quarter, compared to $147.3 million in the
quarter ended March 31, 1997. Sales increased 22% to $2.85 billion in the fiscal
1998 second quarter from $2.33 billion in the quarter ended March 31, 1997.
In September 1997, Tyco changed its fiscal year end from December 31 to
September 30. In the discussion below, the results of operations for fiscal 1998
compares the second quarter and six months ended March 31, 1998 with the
corresponding quarter and six months ended March 31, 1997.
The following segment discussion is before non-recurring charges and
extraordinary items. Earnings of Tyco's Disposable and Specialty Products group
increased 35% to $149.4 million in the fiscal 1998 second quarter compared to
$110.7 million in the quarter ended March 31, 1997. Results for the fiscal 1998
second quarter reflect lower costs and an expanded base of product offerings and
include the operations of Sherwood-Davis & Geck since the date of its
acquisition by Tyco in February 1998. Earnings of Tyco's Fire and Security
Services group increased 41% to $149.8 million in the fiscal 1998 second quarter
compared to $106.0 million in the quarter ended March 31, 1997. Results for this
group reflect increased sales and higher operating margins. Earnings of Tyco's
Flow Control group increased 25% to $73.4 million in the fiscal 1998 second
quarter compared to $58.5 million in the quarter ended March 31, 1997. Increased
sales volume in this group was partially offset by the effect of foreign
currency fluctuations. Earnings of Tyco's Electrical and Electronic Components
group were $92.5 million for the fiscal 1998 second quarter, compared to $28.8
million in the quarter ended March 31, 1997. Results for this group for the
fiscal 1998 second quarter include the operations of Tyco Submarine Systems
Ltd., which was acquired from AT&T Corp. in July 1997, and also reflect earnings
increases in Tyco's Printed Circuit Group. The earnings of Tyco's four business
groups are stated deduction for general corporate expenses, interest expense and
taxes.
4
<PAGE>
The following table sets forth the summary results of operations of Tyco for
the three- and six-month periods ended March 31, 1998 compared to the three- and
six-month periods ended March 31, 1997.
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
MARCH 31, MARCH 31,
-------------------- --------------------
1998 1997 1998 1997
--------- --------- --------- ---------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Sales................................................. $ 2,852.0 $ 2,332.9 $ 5,539.5 $ 4,564.9
--------- --------- --------- ---------
--------- --------- --------- ---------
Income before income taxes and extraordinary items.... 406.5 234.4 765.9 333.0
Income taxes.......................................... (130.3) (87.1) (248.9) (117.6)
--------- --------- --------- ---------
Income before extraordinary items..................... $ 276.2 $ 147.3 $ 517.0 $ 215.4
--------- --------- --------- ---------
--------- --------- --------- ---------
Earnings per share before extraordinary items (1):
Basic............................................... $ 0.49 $ 0.29 $ 0.94 $ 0.44
Diluted............................................. $ 0.48 $ 0.29 $ 0.91 $ 0.43
Common equivalent shares:
Basic............................................... 560.1 499.5 552.6 489.6
Diluted............................................. 579.9 529.1 574.1 518.7
</TABLE>
- ------------------------
(1) Earnings per share based on diluted shares assumes conversion of LYONs
notes. Accordingly, net interest expense of $2.1 million and $4.3 million,
respectively, in the three months and six months ended March 31, 1998 and
$3.5 million and $6.8 million, respectively, in the three months and six
months ended March 31, 1997 must be added back to income before
extraordinary items in order to compute diluted earnings per share.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities to
refinance, in part, existing indebtedness, to finance recently announced
acquisitions and for general corporate purposes. Funds not required immediately
for such purposes may be invested temporarily in short-term marketable
securities.
RATIO OF EARNINGS TO FIXED CHARGES OF TYCO
The following table sets forth the ratio of earnings to fixed charges for
Tyco for the three months ended December 31, 1997, the nine month transitional
fiscal year ended September 30, 1997, and the years ended December 31, 1996,
1995, 1994 and 1993.
<TABLE>
<CAPTION>
THREE MONTHS FISCAL YEAR YEAR ENDED DECEMBER
ENDED ENDED 31,
DECEMBER SEPTEMBER 30, ----------------------
31, 1997 1997(3) 1996 1995
----------------- ------------------- ----- ---------
<S> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)(2)........................ 6.37 (4) (4) 3.00
<CAPTION>
1994 1993
--------- ---------
<S> <C> <C>
Ratio of earnings to fixed charges(1)(2)........................ 3.33 2.76
</TABLE>
- ------------------------
(1) For purposes of determining the ratio of earnings to fixed charges, earnings
consist of income (loss) before income taxes, cumulative effect of change in
accounting methods and extraordinary items, and fixed charges. Fixed charges
consist of interest on indebtedness, amortization of debt expenses and
one-third of rent expense which is deemed representative of an interest
factor.
(2) On July 2, 1997, a wholly-owned subsidiary of Tyco merged with Former Tyco.
On August 27, 1997, Tyco consummated a merger with INBRAND, and, on August
29, 1997, Tyco consummated a merger with Keystone. Each of the three merger
transactions qualifies for pooling of interests basis of accounting. As
such, the ratio of earnings to fixed charges for the nine months ended
September 30, 1997 and the years ended December 31, 1996, 1995, 1994 and
1993 include the effect of the mergers,
5
<PAGE>
except that the calculation presented above for periods prior to January 1,
1997 does not include INBRAND due to immateriality.
Prior to the respective mergers, ADT and Keystone had calendar year ends and
Former Tyco had a June 30 fiscal year end. The historical results upon which
the ratios are based have been combined using a calendar year end for ADT,
Keystone and Former Tyco for the year ended December 31, 1996. For 1995,
1994, and 1993, the ratio of earnings to fixed charges reflects the
combination of ADT and Keystone with a calendar year end and Former Tyco
with a June 30 fiscal year end.
(3) In September 1997, Tyco changed its fiscal year end from December 31 to
September 30. The fiscal year ended September 30, 1997 represents the nine
month period ended September 30, 1997.
(4) Earnings were insufficient to cover fixed charges by $589.7 million and
$61.2 million in 1997 and 1996, respectively.
Earnings for the nine months ended September 30, 1997 and the year ended
December 31, 1996 included merger, restructuring and other nonrecurring
charges of $917.8 million and $246.1 million, respectively. Earnings also
include a charge for the impairment of long-lived assets of $148.4 million
and $744.7 million, respectively, in the 1997 and 1996 periods. The 1997
period also includes a write off of purchased in-process research and
development of $361.0 million.
On a pro forma basis the ratio of earnings to fixed charges excluding merger,
restructuring and other nonrecurring charges, charge for the impairment of
long-lived assets and write-off of purchased in-process research and
development would have been 5.44x and 4.68x for the nine months ended
September 30, 1997 and year ended December 31, 1996, respectively.
6
<PAGE>
DESCRIPTION OF THE DEBT SECURITIES AND THE GUARANTEES
The Debt Securities and the Guarantees offered hereby will be issued under
an indenture (hereinafter the "Indenture"), among the Company, Tyco and the
trustee thereunder (hereinafter referred to as the "Trustee"). The following
statements are subject to the detailed provisions of the Indenture, a copy of
which is filed as an exhibit to this Registration Statement. The Indenture is
subject to, and governed by, the Trust Indenture Act of 1939, as amended. The
statements made hereunder relating to the Indenture and the Debt Securities and
the Guarantees to be issued thereunder are summaries of certain provisions
thereof, do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all provisions of the Indenture and such Debt
Securities and Guarantees. Capitalized terms used but not defined herein shall
have the respective meanings set forth in the Indenture.
The particular terms of the Debt Securities and the Guarantees offered by a
Prospectus Supplement will be described in such Prospectus Supplement, along
with any applicable modifications of or additions to the general terms of the
Debt Securities and the Guarantees as described herein and in the Indenture or
in any supplemental indenture thereto and any applicable material income tax
considerations. Accordingly, for a description of the terms of any series of
Debt Securities and Guarantees, reference must be made to both the Prospectus
Supplement relating thereto and the description of the Debt Securities and the
Guarantees set forth in this Prospectus.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that the Debt Securities
may be issued from time to time in one or more series unless otherwise provided
in any supplemental indenture and the applicable Prospectus Supplement.
Unless otherwise provided in any supplemental indenture and specified in the
applicable Prospectus Supplement, Debt Securities offered pursuant to this
Prospectus will be direct, unsecured and unsubordinated obligations of the
Company and will rank equally with other unsecured and unsubordinated
obligations of the Company for money borrowed. The Debt Securities will be
effectively subordinated to all existing and future indebtedness and other
liabilities of the Company's subsidiaries. The Debt Securities will be fully and
unconditionally guaranteed by Tyco. Except as described under "Certain
Covenants" and as may be provided in any supplemental indenture and set forth in
the applicable Prospectus Supplement, the Indenture does not limit other
indebtedness or securities which may be incurred or issued by the Company or any
of its subsidiaries or contain financial or similar restrictions on the Company
or any of its subsidiaries. Except as may be provided in any supplemental
indenture and set forth in the applicable Prospectus Supplement, the Company's
rights and the rights of its creditors, including holders of Debt Securities, to
participate in any distribution of assets of any subsidiary upon the latter's
liquidation or reorganization or otherwise will be effectively subordinated to
the claims of the subsidiary's creditors, except to the extent that the Company
or any of its creditors may itself be a creditor of that subsidiary.
A Prospectus Supplement will set forth where applicable the following terms
of and information relating to the Debt Securities offered pursuant to this
Prospectus: (i) the designation of the Debt Securities; (ii) the aggregate
principal amount of the Debt Securities; (iii) the date or dates on which
principal of, and premium, if any, on the Debt Securities is payable; (iv) the
rate or rates at which the Debt Securities shall bear interest, if any, or the
method by which such rate shall be determined, the date or dates from which
interest will accrue and on which such interest will be payable and the related
record dates; (v) if other than the offices of the Trustee, the place where the
principal of and any premium or interest on the Debt Securities will be payable;
(vi) any redemption, repayment or sinking fund provisions; (vii) if other than
denominations of $1,000 or multiples thereof, the denominations in which the
Debt Securities will be issuable; (viii) if other than the principal amount
thereof, the portion of the principal amount due upon acceleration; (ix) whether
the Debt Securities shall be issued in the form of a global security or
securities; (x) any other specific terms of the Debt Securities (which may, for
example, include
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the currency, and any index used to determine the amount, of payment of
principal of and any premium and interest on the Debt Securities); and (xi) if
other than the Trustee, the identity of any trustees, paying agents, transfer
agents or registrars with respect to the Debt Securities.
Unless otherwise provided in any supplemental indenture and specified in the
applicable Prospectus Supplement, Debt Securities offered pursuant to this
Prospectus will be issued either in certificated, fully registered form, without
coupons, or as global notes under a book-entry system.
Upon receipt of an authentication order from the Company together with any
other documentation required by the Indenture or any supplemental indenture
thereto, the Trustee will authenticate Debt Securities in the appropriate form
and for the amount specified in the applicable Prospectus Supplement and the
supplemental indenture relating thereto.
Unless otherwise provided in any supplemental indenture and specified in the
applicable Prospectus Supplement, principal and premium, if any, will be
payable, and the Debt Securities offered pursuant to this Prospectus will be
transferable and exchangeable without any service charge, at the office of the
Trustee. However, the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with any such
transfer or exchange.
Interest, if any, on any series of Debt Securities offered pursuant to this
Prospectus will be payable on the interest payment dates set forth in the
accompanying Prospectus Supplement to the persons described in the accompanying
Prospectus Supplement.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, there are no covenants or provisions contained
in the Indenture which afford the holders of Debt Securities offered pursuant to
this Prospectus protection in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar transaction involving the
Company. The consummation of any highly leveraged transaction, reorganization,
restructuring, merger or similar transaction could cause a material decline in
the credit quality of the outstanding Debt Securities.
GUARANTEES
Tyco will unconditionally guarantee the due and punctual payment of the
principal of, premium, if any, and interest and any Additional Amounts (as
defined below under "Payment of Additional Amounts"), if any, on the Debt
Securities when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise. The Guarantees are unsecured and
unsubordinated obligations of Tyco and will rank equally with all other
unsecured and unsubordinated obligations of Tyco. The Guarantees provide that in
the event of a default in payment of principal of, premium, if any, or interest
on a Debt Security, the holder of the Debt Security may institute legal
proceedings directly against Tyco to enforce the Guarantees without first
proceeding against the Company. In addition, under certain circumstances
described under "Certain Covenants--Limitation on Indebtedness of Subsidiaries,"
subsidiaries of the Company (collectively with Tyco, the "Guarantors") may
execute and deliver additional Guarantees.
The obligations of Tyco and any other Guarantor, if any, under their
respective Guarantees are limited to the maximum amount which, after giving
effect to any collections from or payments made by or on behalf of any other
Guarantors in respect of the obligations of such other Guarantors under their
respective Guarantees or pursuant to their contribution obligations under the
Indenture, will result in the obligations of such Guarantors under their
Guarantees not constituting a fraudulent conveyance or fraudulent transfer under
applicable law. Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor to the
extent permitted by applicable law.
REDEMPTION UPON CHANGES IN WITHHOLDING TAXES
The Debt Securities of any series may be redeemed, as a whole but not in
part, at the election of the Company, upon not less than 30 nor more than 60
days notice (which notice shall be irrevocable), at a redemption price equal to
100% of the principal amount thereof, together with accrued interest, if any, to
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the redemption date and Additional Amounts, 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 applicable Debt Securities are issued, the Company
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 Debt Securities of such
series, and such obligation cannot be avoided by the use of reasonable measures
available to the Company; PROVIDED, HOWEVER, that (a) no such notice of
redemption may be given earlier than 60 days prior to the earliest date on which
the Company would be obligated to pay such Additional Amounts, and (b) at the
time such notice of redemption is given, such obligation to pay such Additional
Amounts remains in effect. Prior to the giving of any notice of redemption
described in this paragraph, the Company shall deliver to the Trustee (i) a
certificate signed by two directors of the Company stating that the obligation
to pay Additional Amounts cannot be avoided by the Company taking reasonable
measures available to it and (ii) a written opinion of independent legal counsel
to the Company of recognized standing to the effect that the Company has or will
become obligated to pay Additional Amounts as a result of a change, amendment,
official interpretation or application described above and that the Company
cannot avoid the payment of such Additional Amounts by taking reasonable
measures available to it.
PAYMENT OF ADDITIONAL AMOUNTS
All payments made by the Company and Tyco under or with respect to the Debt
Securities and the Guarantees will be made free and clear of and without
withholding or deduction for or on account of any present or future taxes,
duties, levies, imposts, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of any Taxing Authority ("Taxes"), unless the
Company or Tyco, as the case may be, is required to withhold or deduct Taxes by
law or by the interpretation or administration thereof. In the event that the
Company or Tyco 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 Debt
Securities or the Guarantees, as the case may be, the Company or Tyco, 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 Debt 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 Debt 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 Debt Securities or
the exercise or enforcement of rights under such Debt Securities, the
Guarantees or the Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or personal
property Taxes imposed with respect to such Debt Securities, except as
otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the
presentation of such Debt 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 Debt
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
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which the Company or Tyco shall apply this clause (d), the Company or Tyco
shall have notified all holders of Debt Securities in writing that they
shall be required to provide such declaration or claim.
The Company and Tyco, 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 Company and Tyco, 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 Company or Tyco, as the case may be, will, upon request, make available to
the holders of the Debt 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 Company or Tyco or if,
notwithstanding the Company's or Tyco's efforts to obtain such receipts, the
same are not obtainable, other evidence of such payments by the Company or Tyco.
At least 30 days prior to each date on which any payment under or with
respect to the Debt Securities is due and payable, if the Company or Tyco will
be obligated to pay Additional Amounts with respect to such payment, the Company
or Tyco will deliver to the Trustee an officer's certificate stating the fact
that such Additional Amounts will be payable, the amounts so payable and such
other information as is necessary to enable such Trustee to pay such Additional
Amounts to holders of Debt Securities on the payment date.
The foregoing provisions shall survive any termination of the discharge of
the Indenture and shall apply mutatis mutandis to any jurisdiction in which any
successor Person to the Company or Tyco, 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 Company 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 Debt Securities.
Whenever in the Indenture, the Debt Securities, in the "Description of the
Notes and the Guarantees" in any Prospectus Supplement or in this "Description
of the Debt Securities and the Guarantees" there is mentioned, in any context,
the payment of principal (and premium, if any), redemption price, interest or
any other amount payable under or with respect to any Debt 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.
BOOK-ENTRY SYSTEM
If so specified in the applicable Prospectus Supplement, Debt Securities of
any series offered pursuant to this Prospectus may be issued under a book-entry
system in the form of one or more global securities ("Global Securities"). Each
Global Security will be deposited with, or on behalf of, a depositary, which,
unless otherwise specified in the accompanying Prospectus Supplement, will be
The Depository Trust Company, New York, New York (the "Depositary"). The Global
Securities will be registered in the name of the Depositary or its nominee. The
specific terms of the depositary arrangement with respect to any series of Debt
Securities, or portion thereof, to be represented by a Global Security will be
provided in the supplemental indenture relating thereto and described in the
applicable Prospectus Supplement.
The Depositary has advised the Company as follows: the Depositary is a
limited purpose trust company organized under the laws of the State of New York,
a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. The
Depositary was created to hold securities of Persons who have accounts with the
Depositary ("participants") and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of certificates.
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The Depositary's participants include securities brokers and dealers, banks,
trust companies and clearing corporations, and may include certain other
organizations. Indirect access to the Depositary's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly.
Upon the issuance of a Global Security, the Depositary or its nominee will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of participants. The accounts to be credited will be designated by
the underwriters or agents, if any, or by the Company, if such Debt Securities
are offered and sold directly by the Company. Ownership of beneficial interests
in the Global Security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests by
participants in the Global Security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in the Global Security by persons that hold through participants will
be shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to transfer beneficial interests in a Global
Security.
So long as the Depositary or its nominee is the registered owner of a Global
Security, it will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture. Except
as set forth below, owners of beneficial interests in such Global Security will
not be entitled to have the Debt Securities represented thereby registered in
their names, will not receive or be entitled to receive physical delivery of
certificates representing the Debt Securities and will not be considered the
owners or holders thereof under the Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities represented by a Global Security will be made to the Depositary or
its nominee, as the case may be, as the registered owner or the holder of the
Global Security. None of the Company, the Trustee, any paying agent or registrar
for such Debt Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interest in the Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal, premium, if any, or
interest on the payment date thereof in amounts proportionate to their
respective beneficial interests in the principal amount of the Global Security
as shown on the records of the Depositary. The Company expects that payments by
participants to owners of beneficial interests in the Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the account of
customers registered in "street name," and will be the responsibility of such
participants.
A Global Security may not be transferred except as a whole to a nominee or
successor of the Depositary. If the Depositary is at any time unwilling or
unable to continue as depositary and a successor depositary is not appointed by
the Company within ninety days, the Company will issue certificates in
registered form in exchange for the Global Security or securities representing
the Debt Securities. In addition, the Company may at any time and in its sole
discretion determine not to have Debt Securities of a series represented by a
Global Security and, in such event, will issue certificates in definitive form
in exchange for the Global Security representing such Debt Securities.
CERTAIN COVENANTS
Other than the covenants described below, any covenants, including any
restrictive covenants, of the Company with respect to any series of Debt
Securities will be provided in a supplemental indenture and described in the
applicable Prospectus Supplement.
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LIMITATIONS ON LIENS. The Company covenants that, so long as any Debt
Securities remain outstanding (but subject to defeasance, as provided in the
Indenture), it will not, and will not permit any Restricted Subsidiary (as
defined below) to, issue, assume or guarantee any Indebtedness (as defined
below) which is secured by a mortgage, pledge, security interest, lien or
encumbrance (each a "lien") upon any Principal Property (as defined below), or
any shares of stock of or Indebtedness issued by any Restricted Subsidiary,
without effectively providing that, for so long as such lien shall continue in
existence with respect to such secured Indebtedness, the Debt Securities
(together with, if the Company shall so determine, any other Indebtedness of the
Company ranking equally with the Debt Securities) shall be equally and ratably
secured with (or at the Company's option prior to) such secured Indebtedness,
except that the foregoing covenant shall not apply to (a) liens existing on the
date of the applicable Debt Securities are issued; (b) liens on the stock,
assets or Indebtedness of a corporation existing at the same time such
corporation becomes a Restricted Subsidiary unless created in contemplation of
such Restricted Subsidiary becoming such; (c) liens on any assets or
Indebtedness of a corporation existing at the time such corporation is merged
into the Company or a Subsidiary or at the time of a purchase, lease or other
acquisition of the assets of a corporation or firm as an entirety or
substantially as an entirety by the Company or a Subsidiary; (d) liens on any
Principal Property existing at the time of acquisition thereof by the Company or
any Restricted Subsidiary, or liens to secure the payment of the purchase price
of such Principal Property, or to secure Indebtedness incurred, assumed or
guaranteed by the Company 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); (e)
liens securing Indebtedness owing by any Restricted Subsidiary to the Company,
Tyco or a Subsidiary or by the Company to Tyco; (f) liens in favor of the United
States of America or any State thereof or any other country, or 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, or in connection
with bids, tenders, contracts (other than for the payment of money) or leases to
which the Company or any Restricted Subsidiary is a party, or to secure the
public or statutory obligations of the Company or any Restricted Subsidiary, or
in connection with 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 Company 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) certain liens in connection with legal
proceedings, including certain liens arising out of judgments or awards, to the
extent such proceedings are being contested or appealed in good faith, or liens
incurred for the purpose of obtaining a stay or discharge in the course of any
litigation or other proceeding; (i) liens for certain taxes or assessments,
landlord's liens and liens and charges incidental to the conduct of the business
of the Company or any Restricted Subsidiary, or the ownership of their assets,
which were not incurred in connection with the borrowing of money or the
obtaining of advances or credit and which do not, in the opinion of the Board of
Directors of the Company, materially impair the use of such Principal Property
in the operation of the business of the Company or such Restricted Subsidiary or
the value of such Principal Property for the purposes thereof; (j) liens to
secure the Company'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 such lien, the aggregate amount of all outstanding
Indebtedness of the Company and its Restricted Subsidiaries (without
duplication) secured by all liens not so permitted by the foregoing clauses
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(a) through (j), inclusive, together with the Attributable Debt (as defined
below) in respect of Sale and Lease-Back Transactions (as defined below)
permitted by paragraph (a) under "Limitation on Sale and Lease-Back
Transactions" below does not exceed the greater of $100,000,000 and 10% of
Consolidated Net Worth (as defined below); 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,
except 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 part of the assets (or any replacement therefor) which secured the lien
so extended, renewed or replaced (plus improvements and construction on real
property).
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. The Company will not, and
will not permit any Subsidiary to, enter into any Sale and Lease-Back
Transaction with respect to a Principal Property unless (a) the Company 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 transaction, without equally and ratably securing the
Debt Securities pursuant to the provisions described under "Limitations on
Liens" above, or (b) the direct or indirect proceeds of the sale of the
Principal Property to be leased are at least equal to their fair value (as
determined by the Company's Board of Directors) and an amount equal to the net
proceeds is applied, within 180 days of the effective date of such 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 Debt Securities, or of Funded Indebtedness (as defined below) of
the Company that ranks on a parity with the Debt Securities or of Funded
Indebtedness of a consolidated Subsidiary of the Company (subject to credits for
certain voluntary retirement of Funded Indebtedness and certain delivery of Debt
Securities to the Trustee for retirement and cancellation).
LIMITATION ON INDEBTEDNESS OF SUBSIDIARIES. (a) The Company 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 providing for a Guarantee of the Debt Securities.
(b) Notwithstanding the foregoing, any Guarantee by a Subsidiary of the Debt
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 Company, of
all of the Company's equity interests in, or all or substantially all the assets
of, such Subsidiary, which transaction is in compliance with the terms of the
Indenture and such Subsidiary is released from all guarantees, if any, by it of
other Indebtedness of the Company or any Subsidiaries, (ii) the payment in full
of all obligations under the Indebtedness giving rise to such Guarantee or (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 covenant, 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.
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DEFINITIONS. "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 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 (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 determined on a weighted average basis and
compounded semi-annually) of the obligations of the Company 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.
"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 the Indenture, partnership interests (whether general or
limited), any other interest or participation that confers on a Person the 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.
"Consolidated Net Worth" means, at any date, the total assets less the total
liabilities, in each case appearing on the most recently prepared consolidated
balance sheet of the Company and its subsidiaries as of the end of a fiscal
quarter of the Company, prepared in accordance with United States 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 Company and its subsidiaries as of the end of a fiscal quarter of
the Company, prepared in accordance with United States 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.
"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.
"Guarantee" means the unconditional and unsubordinated guarantee by Tyco or
any Guarantor of the due and punctual payment of the principal of and interest
on the Debt Securities (including premium and Additional Amounts, if any) when
and as the same shall become due and payable, whether at the stated
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maturity, by acceleration, call for redemption or otherwise, in accordance with
the terms of such Debt Securities and the Indenture.
"Guarantor" means Tyco or any Subsidiary that after the date of the
Indenture executes a guarantee of the Debt Securities contemplated by the
"Limitation on Indebtedness of Subsidiaries" covenant, until a successor
replaces such party pursuant to the applicable provisions of the Indenture and,
thereafter, shall mean such successor.
"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 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 United States generally accepted accounting
principles, and (vi) all Indebtedness of others guaranteed by the Company or any
of its Subsidiaries or for which the Company 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).
"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 Company
(excluding any Indebtedness described in clauses (ii) through (viii) herein);
(ii) Indebtedness owed to the Company, Tyco or any Subsidiary; (iii) obligations
under standby letters of credit or similar arrangements supporting the
performance of a Person under a contract or agreement in the ordinary course of
business; (iv) obligations as lessee in the ordinary course of business which
are capitalized in accordance with United States generally accepted accounting
principles; (v) Indebtedness that was Permitted Subsidiary Indebtedness at the
time that it was first incurred; (vi) Acquired Indebtedness that by its terms is
not callable or redeemable prior to its stated maturity and that remains
outstanding following such time as the Subsidiary obligated under such Acquired
Indebtedness in good faith has made or caused to be made an offer to acquire all
such Indebtedness on terms which, in the opinion of an investment bank 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 be not later than the expiration of the
time period set forth in paragraph (c) of the "Limitation of Indebtedness of
Subsidiaries" covenant; (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
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 Restricted Subsidiary incurred in connection with such refinancing.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"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
15
<PAGE>
Company, are not collectively of material importance to the total business
conducted by the Company 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 Company, of less than 1.5%
of Consolidated Tangible Assets.
"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 Company or a Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Company 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.
"Subsidiary" means any corporation of which at least a majority of the
outstanding securities having voting power under ordinary circumstances for the
election of the board of directors of said corporation shall at the time
directly or indirectly be owned or controlled by the Company or by one or more
Subsidiaries or by the Company and one or more Subsidiaries.
"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).
MERGER, CONSOLIDATION, SALE OR CONVEYANCE
The Indenture provides that unless otherwise provided in any supplemental
indenture and described in the applicable Prospectus Supplement, neither the
Company, Tyco nor any other Guarantor will merge or consolidate with any other
corporation and will not sell or convey all or substantially all of its assets
to any Person, unless the Company, Tyco or such other Guarantor, as the case may
be, shall be the continuing corporation, or the successor corporation or Person
that acquires all or substantially all of the assets of the Company, Tyco or
such other Guarantor, as the case may be, shall expressly assume the payment of
principal of, premium, if any, and interest on the Debt Securities and the
observance of all the covenants and agreements under the Indenture to be
performed or observed by the Company, Tyco or such other Guarantor, as the case
may be, and immediately after such merger, consolidation, sale or conveyance,
the Company, Tyco or such other Guarantor, as the case may be, such Person or
such successor corporation shall not be in default in the performance of the
covenants and agreements of the Indenture to be performed or observed by the
Company, Tyco or such other Guarantor, as the case may be; provided that the
foregoing shall not apply to a Guarantor other than Tyco if in connection with
any such merger, consolidation, sale or conveyance the Guarantee of such
Guarantor is released and discharged pursuant to paragraph (b) of the
"Limitation on Indebtedness of Subsidiaries" covenant.
EVENTS OF DEFAULT
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, an Event of Default with respect to Debt
Securities of any series issued under the Indenture is defined in the Indenture
as being: default for 30 days in payment of any interest on any Debt Securities
of such series; default in any payment of principal of or premium, if any, on
any Debt Securities of such series (including any sinking fund payment); default
by the Company, Tyco or any other Guarantor in performance of any other of the
covenants or agreements in respect of the Debt Securities of such series or the
Indenture which shall not have been remedied for a period of 90 days after
written notice to the Company by the Trustee or the holders of at least 25% of
the principal amount of all Debt Securities of all affected series, as provided
in the supplemental indenture relating thereto and described in the applicable
Prospectus Supplement, specifying that such notice is a "Notice of Default"
under the Indenture; default by the Company, Tyco or any other Guarantor in the
payment at the final maturity thereof, after the
16
<PAGE>
expiration of any applicable grace period, of principal of, premium, if any, or
interest on Indebtedness for money borrowed (other than Non-Recourse
Indebtedness, as defined) in the principal amount then outstanding of
$50,000,000 or more, or acceleration of any Indebtedness in such principal
amount so that it becomes due and payable prior to the date on which it would
otherwise have become due and payable and such acceleration is not rescinded
within ten business days after notice to the Company by the Trustee or the
holders of at least 25% of the principal amount of all of the Debt Securities at
the time outstanding (treated as one class); any Guarantee ceases to be, or the
Company or any Guarantor asserts in writing that such Guarantee is not in full
force and effect and enforceable in accordance with its terms; certain events
involving bankruptcy, insolvency or reorganization of the Company, Tyco or any
Significant Subsidiary Guarantor; or any other Event of Default established for
the Debt Securities of such series set forth in the accompanying Prospectus
Supplement. Unless otherwise provided in any supplemental indenture and
described in the applicable Prospectus Supplement, the Indenture provides that
the Trustee shall transmit notice of any uncured default under the Indenture
with respect to any series, within 90 days after the occurrence of such default,
to the holders of Debt Securities of each affected series, except that the
Trustee may withhold notice to the holders of any series of the Debt Securities
of any default (except in payment of principal of, premium, if any, or interest
on such series of Debt Securities) if the Trustee considers it in the interest
of the holders of such series of Debt Securities to do so.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, (a) if an Event of Default due to the default
in payment of principal of, premium, if any, or interest on any series of Debt
Securities issued under the Indenture or due to the default in the performance
or breach of any other covenant or agreement of the Company, Tyco or any
Guarantor applicable to the Debt Securities of such series but not applicable to
all outstanding Debt Securities issued under the Indenture shall have occurred
and be continuing, either the Trustee or the holders of not less than 25% in
principal amount of the Debt Securities of each affected series issued under the
Indenture and then outstanding (each such series voting as a separate class) may
declare the principal of all Debt Securities of such affected series and
interest accrued thereon to be due and payable immediately; and (b) if an Event
of Default due to a default in the performance of any other of the covenants or
agreements in the Indenture applicable to all outstanding Debt Securities issued
thereunder and then outstanding, or due to a default in payment at final
maturity or upon acceleration of indebtedness for money borrowed in the
principal amount then outstanding of $50,000,000 or more, or to certain events
of bankruptcy, insolvency and reorganization of the Company, Tyco or any
Guarantor shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of all Debt Securities issued
under the Indenture and then outstanding (treated as one class) may declare the
principal of all such Debt Securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in payment
of principal of, premium, if any, or interest on such Debt Securities) by the
holders of a majority in principal amount of the Debt Securities of all such
affected series then outstanding (each such series voting as a separate class or
all such Debt Securities voting as a single class, as the case may be).
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the holders of a majority in principal amount
of the Debt Securities of each series then outstanding and affected (with each
series voting as a separate class) shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Debt Securities of such series under the Indenture,
subject to certain limitations specified in the Indenture, provided that the
holders of such Debt Securities shall have offered to the Trustee reasonable
indemnity against expenses and liabilities.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the Indenture provides that no holder of Debt
Securities of any series may institute any action against the Company under the
Indenture (except actions for payment of overdue principal, premium, if any, or
interest) unless such holder previously shall have given to the Trustee written
notice of default and continuance thereof and unless the holders of not less
than 25% in principal amount of the Debt Securities
17
<PAGE>
of each affected series (with each series voting as a separate class) issued
under the Indenture and then outstanding shall have requested the Trustee to
institute such action and shall have offered the Trustee reasonable indemnity,
and the Trustee shall not have instituted such action within 60 days of such
request, and the Trustee shall not have received direction inconsistent with
such written request by the holders of a majority in principal amount of the
Debt Securities of each affected series (with each series voting as a separate
class) issued under such Indenture and then outstanding.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the Indenture requires the annual filing by
the Company with the Trustee of a written statement as to compliance with the
covenants and agreements contained in the 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 Company accounted for more than 10% of the consolidated
revenues of the Company 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
Company, as determined in accordance with United States generally accepted
accounting principles and reflected on the Company's consolidated financial
statements.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the Company may discharge or defease its
obligations under the Indenture as set forth below.
Under terms satisfactory to the Trustee, the Company may discharge this
Indenture with respect to any series of Debt Securities issued under the
Indenture which have not already been delivered to the Trustee for cancellation
and which have either become due and payable or are by their terms due and
payable within one year (or which may be called for redemption within one year)
by irrevocably depositing with the Trustee cash or direct obligations of the
United States as trust funds in an amount certified to be sufficient to pay at
maturity (or upon redemption) the principal of, premium, if any, and interest
and Additional Amounts, if any, on such Debt Securities. However, the Company
may not thereby avoid its duty to register the transfer or exchange of such
series of Debt Securities, to replace any mutilated, destroyed, lost or stolen
Debt Securities of such series or to maintain an office or agency in respect of
such series of Debt Securities.
In the case of any series of Debt Securities in respect of which the exact
amounts of principal of and interest due on such series can be determined at the
time of making the deposit referred to below, the Company at its option at any
time may also (i) discharge any and all of its obligations to holders of such
series of Debt Securities issued under the Indenture ("defeasance"), but may not
thereby avoid its duty to register the transfer or exchange of such series of
Debt Securities, to replace any mutilated, destroyed, lost, or stolen Debt
Securities of such series or to maintain an office or agency in respect of such
series of Debt Securities or (ii) be released with respect to any outstanding
series of Debt Securities issued under the Indenture from the obligations
imposed by the covenants described under the captions "Covenants" and "Merger,
Consolidation, Sale or Conveyance" above and omit to comply with such covenants
without creating an Event of Default ("covenant defeasance"). Defeasance or
covenant defeasance may be effected only if, among other things: (i) the Company
or Tyco irrevocably deposits with the Trustee cash and/or direct obligations of
the United States, as trust funds in an amount certified by a nationally
recognized firm of independent public accountants or a nationally recognized
investment banking firm to be sufficient to pay each installment of principal
of, premium, if any, and interest and Additional Amounts, if any, on all
outstanding Debt Securities of such series issued under the Indenture on the
dates such installments of principal, premium, if any, and interest are due;
(ii) no default or Event of Default shall have occurred and be continuing on the
date of the deposit referred to in clause (i) or, in respect of certain events
of bankruptcy, insolvency or reorganization, during the period ending on the
91st day after the date of such deposit (or any longer applicable preference
period); and (iii) the Company delivers to the Trustee
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<PAGE>
(A) an opinion of counsel to the effect that the holders of such series of Debt
Securities will not recognize any income, gain or loss for United States federal
income tax purpose as a result of such deposit and defeasance or covenant
defeasance, as applicable, and will be subject to United States federal income
tax on the same amounts and 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 (in the case of defeasance, such opinion must be
based on a ruling of the Internal Revenue Service or a change in United States
federal income tax law occurring after the date of the Indenture) and (B) an
opinion of counsel to the effect that (x) payments from the defeasance trust
will be free and exempt from any and all withholding and other taxes imposed or
levied by or on behalf of Luxembourg or any political subdivision thereof having
the power to tax, and (y) holders of such series of Debt Securities will not
recognize any income, gain or loss for Luxembourg income tax and other tax
purposes as a result of such deposit and defeasance or covenant defeasance, as
applicable, and will be subject to Luxembourg income tax and other tax on the
same amounts, in the same manner and at the same times as would have been the
case if such deposit and defeasance or covenant defeasance, as applicable, had
not occurred.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company, Tyco and the
Trustee, with the consent of the holders of not less than a majority of
principal amount of the Debt Securities at the time outstanding of all series
affected (voting as one class), to modify the Indenture or any supplemental
indenture or the rights of the holders of the Debt Securities, except that no
such modification shall (i) extend the final maturity of any of the Debt
Securities 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 any original issue discount security
payable upon acceleration or provable in bankruptcy or impair or affect the
right of any holder of the Debt Securities to institute suit for the payment
thereof without the consent of the holder of each of the Debt Securities so
affected or (ii) reduce the aforesaid percentage in principal amount of Debt
Securities, the consent of the holders of which is required for any such
modification, without the consent of the holders of all Debt Securities then
outstanding.
The Indenture contains provisions permitting the Company, Tyco and the
Trustee, without the consent of any holders of Debt Securities, to enter into a
supplemental indenture, among other things, for purposes of curing any ambiguity
or correcting or supplementing any provision contained in the Indenture or in
any supplemental indenture or making other provisions in regard to the matters
or questions arising under the Indenture or any supplemental indenture as the
Board of Directors of the Company deems necessary or desirable and which does
not adversely affect the interests of the holders of Debt Securities in any
material respect. The Company, Tyco and the Trustee, without the consent of any
holders of Debt Securities, may also enter into a supplemental indenture to
establish the form or terms of any series of Debt Securities as are not
otherwise inconsistent with any of the provisions of the Indenture.
CONCERNING THE TRUSTEE
The Trustee may hold Debt Securities, act as a depository for funds of, make
loans to, or perform other services for, Tyco, the Company and their
subsidiaries as if it were not the Trustee.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters or dealers,
and also may sell Debt Securities directly to other purchasers or through
agents. Each Prospectus Supplement will describe the method of distribution of
the offered Securities.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
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<PAGE>
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions, or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions, or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers, and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Debt Securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the Prospectus Supplement.
Underwriters and agents who participate in the distribution of Debt
Securities may be entitled under agreements which may be entered into by the
Company to indemnification by the Company and Tyco against certain liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase offered Debt Securities from
the Company pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the offered Debt Securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other agents will not have any responsibility in respect
of the validity or performance of such contracts.
LEGAL MATTERS
Certain U.S. legal matters regarding the Debt Securities and the Guarantees
will be passed upon for Tyco and the Company by Kramer, Levin, Naftalis &
Frankel, New York, New York, counsel to Tyco and the Company. Joshua M. Berman,
a director and vice president of Tyco, is counsel to Kramer, Levin, Naftalis &
Frankel. Mr. Berman owns beneficially 64,000 common shares of Tyco. Certain
matters under the laws of Bermuda related to the Guarantees of Tyco will be
passed upon for Tyco by Appleby, Spurling & Kempe, Hamilton, Bermuda, Bermuda
counsel to Tyco. Certain matters under the laws of Luxembourg related to the
Debt Securities will be passed upon by Zeyen Beghin Feider Loeff Claeys Verbeke,
Luxembourg counsel to the Company.
EXPERTS
The consolidated financial statements and financial statement schedule
included in Tyco's Transition Report on Form 10-K for fiscal year ended
September 30, 1997 and included in Tyco's Current Report on Form 8-K dated April
23, 1998 and incorporated by reference in this Prospectus have been audited by
Coopers & Lybrand, independent public accountants, as set forth in their reports
included therein. In those reports, that firm states that with respect to
certain subsidiaries its opinion is based on the reports of other independent
public accountants, namely Coopers & Lybrand L.L.P. and Arthur Andersen LLP. The
consolidated financial statements and financial statement schedule referred to
above have been incorporated herein in reliance upon said reports given upon the
authority of those firms as experts in accounting and auditing.
20
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and distribution of
the Debt Securities covered by this Registration Statement are as follows:
<TABLE>
<S> <C>
SEC registration fee (actual)................................... $1,106,250
Printing and engraving expenses................................. 100,000
Legal fees and expenses......................................... 100,000
Accounting fees and expenses.................................... 50,000
Miscellaneous................................................... 68,750
---------
Total........................................................... $1,425,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Bye-Law 102 of Tyco's Bye-Laws provides, in part, that Tyco shall indemnify
its directors and other officers for all costs, losses and expenses which they
may incur in the performance of their duties as director or officer, provided
that such indemnification is not otherwise prohibited under the Companies Act
1981 (as amended) of Bermuda. Section 98 of the Companies Act 1981 (as amended)
prohibits such indemnification against any liability arising out of the fraud or
dishonesty of the director or officer. However, such section permits Tyco to
indemnify a director or officer against any liability incurred by him in
defending any proceedings, whether civil or criminal, in which judgment is given
in his favor or in which he is acquitted or when other similar relief is granted
to him.
Tyco maintains $75 million of insurance to reimburse the directors and
officers of Tyco and its subsidiaries, including the Company and its
subsidiaries, for charges and expenses incurred by them for wrongful acts
claimed against them by reason of their being or having been directors or
officers of Tyco or any of its subsidiaries, including the Company and its
subsidiaries. Such insurance specifically excludes reimbursement of any director
or officer for any charge or expense incurred in connection with various
designated matters, including libel or slander, illegally obtained personal
profits, profits recovered by Tyco pursuant to Section 16(b) of the Exchange Act
and deliberate dishonesty.
II-1
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<C> <C> <S>
1.1 -- Form of Underwriting Agreement*
3.1 -- Memorandum of Association (as altered) of Tyco (incorporating all amendments to
May 26, 1992) (incorporated by reference as an Exhibit to Tyco's Annual Report on
Form 10-K for the year ended December 31, 1992)
3.2 -- Certificate of Incorporation on Change of Name of Tyco (previously filed as an
Exhibit to Tyco's Current Report on Form 8-K filed July 10, 1997)
3.3 -- Bye-Laws of Tyco (incorporating all amendments to March 27, 1998)**
3.4 -- Articles of Association of the Company**
4.1 -- Form of Indenture
4.2 -- Form of Debt Securities*
5.1 -- Opinion of Appleby, Spurling & Kempe
5.2 -- Opinion of Zeyen Beghin Feider Loeff Claeys Verbeke
5.3 -- Opinion of Kramer, Levin, Naftalis & Frankel
12 -- Statement of Computation of Ratio of Earnings to Fixed Charges**
23.1 -- Consent of Coopers & Lybrand
23.2 -- Consent of Coopers & Lybrand L.L.P.
23.3 -- Consent of Arthur Andersen LLP
24 -- Powers of Attorney**
25 -- Statement of Eligibility of Trustee on Form T-1**
</TABLE>
- ------------------------
* To be filed by amendment or under cover of Form 8-K and incorporated herein
by reference.
** Previously filed.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and persons controlling the Registrants
pursuant to the foregoing provisions, the Registrants have been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrants of expenses incurred or paid by a director, officer
or controlling person of the Registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrants will,
unless in the opinion of their counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by them is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
Each of the undersigned Registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the
II-2
<PAGE>
ITEM 17. UNDERTAKINGS (CONTINUED)
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed or furnished to the Commission by the
Registrants pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Each of the undersigned Registrants hereby undertakes that: (1) for purposes
of determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this Registration Statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
Registrants pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
of 1933 shall be deemed to be part of this Registration Statement as of the time
it was declared effective; and (2) for the purpose of determining any liability
under the Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Exeter, State of New Hampshire, on the
28th day of April, 1998.
TYCO INTERNATIONAL LTD.
BY: /S/ MARK H. SWARTZ
-----------------------------------------
Mark H. Swartz
EXECUTIVE VICE PRESIDENT--
CHIEF FINANCIAL OFFICER
(PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER)
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons on
April 28, 1998 in the capacities indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ ---------------------------
<C> <S>
Chairman of the Board,
* President, Chief
- ------------------------------ Executive Officer and
L. Dennis Kozlowski Director (Principal
Executive Officer)
* Director
- ------------------------------
Michael A. Ashcroft
* Director
- ------------------------------
Joshua M. Berman
* Director
- ------------------------------
Richard S. Bodman
* Director
- ------------------------------
John F. Fort
* Director
- ------------------------------
Stephen W. Foss
* Director
- ------------------------------
Richard A. Gilleland
* Director
- ------------------------------
Philip M. Hampton
* Director
- ------------------------------
James S. Pasman, Jr.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ ---------------------------
* Director
- ------------------------------
W. Peter Slusser
<C> <S>
Executive Vice President
/s/ MARK H. SWARTZ and Chief Financial
- ------------------------------ Officer (Principal
Mark H. Swartz Financial and Accounting
Officer)
* Director
- ------------------------------
Frank E. Walsh, Jr.
</TABLE>
<TABLE>
<S> <C> <C>
/s/ MARK H. SWARTZ
--------------------------------------
Mark H. Swartz
By: ATTORNEY-IN-FACT
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Luxembourg, on the 28th day of April, 1998.
TYCO INTERNATIONAL GROUP S.A.
BY: /S/ RICHARD W. BRANN
-----------------------------------------
Richard W. Brann
MANAGING DIRECTOR
(PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER)
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons on
April 28, 1998 in the capacities indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ ---------------------------
<C> <S>
* Director
- ------------------------------
Teunis Ch. Akkerman
/s/ RICHARD W. BRANN Managing Director
- ------------------------------
Richard W. Brann
* Managing Director
- ------------------------------
Byron S. Kalogerou
</TABLE>
<TABLE>
<S> <C> <C>
/s/ RICHARD W. BRANN
--------------------------------------
Richard W. Brann
By: ATTORNEY-IN-FACT
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ----------- -------------------------------------------------------------------------------------------- ---------------
<C> <S> <C>
1.1 --Form of Underwriting Agreement*
3.1 --Memorandum of Association (as altered) of Tyco (incorporating all amendments to May 26,
1992) (incorporated by reference as an Exhibit to Tyco's Annual Report on Form 10-K for
the year ended December 31, 1992)
3.2 --Certificate of Incorporation on Change of Name of Tyco (previously filed as an Exhibit to
Tyco's Current Report on Form 8-K filed July 10, 1997)
3.3 --Bye-Laws of Tyco (incorporating all amendments to March 27, 1998)**
3.4 --Articles of Association of the Company**
4.1 --Form of Indenture
4.2 --Form of Debt Securities*
5.1 --Opinion of Appleby, Spurling & Kempe
5.2 --Opinion of Zeyen Beghin Feider Loeff Claeys Verbeke
5.3 --Opinion of Kramer, Levin, Naftalis & Frankel
12 --Statement of Computation of Ratio of Earnings to Fixed Charges**
23.1 --Consent of Coopers & Lybrand
23.2 --Consent of Coopers & Lybrand L.L.P.
23.3 --Consent of Arthur Andersen LLP
24 --Powers of Attorney**
25 --Statement of Eligibility of Trustee on Form T-1**
</TABLE>
- ------------------------
* To be filed by amendment or under cover of Form 8-K and incorporated herein
by reference.
** Previously filed.
<PAGE>
EXHIBIT 4.1
DRAFT
4/27/98
- --------------------------------------------------------------------------------
TYCO INTERNATIONAL GROUP S.A.,
as Issuer
AND
TYCO INTERNATIONAL LTD.,
as Guarantor
AND
THE BANK OF NEW YORK,
as Trustee
Indenture
Dated as of , 1998
--------- --
---------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE....................................................................1
SECTION 1.1 Certain Terms Defined........................................1
ARTICLE TWO....................................................................7
SECTION 2.1 Forms Generally..............................................7
SECTION 2.2 Form of Guarantee............................................7
SECTION 2.3 Form of Trustee's Certificate of Authentication..............8
SECTION 2.4 Amount Unlimited; Issuable in Series.........................8
SECTION 2.5 Authentication and Delivery of Securities....................9
SECTION 2.6 Execution of Securities.....................................10
SECTION 2.7 Certificate of Authentication...............................11
SECTION 2.8 Denomination and Date of Securities;
Payments of Interest.......................................11
SECTION 2.9 Registration, Transfer and Exchange.........................11
SECTION 2.10 Mutilated, Defaced, Destroyed,
Lost and Stolen Securities.................................12
SECTION 2.11 Cancellation of Securities; Destruction Thereof.............13
SECTION 2.12 Temporary Securities........................................13
SECTION 2.13 Securities Issuable in the Form of a Global Security........14
ARTICLE THREE.................................................................15
SECTION 3.1 Payment of Principal and Interest...........................15
SECTION 3.2 Offices for Payments, etc...................................15
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee..........16
SECTION 3.4 Paying Agent................................................16
SECTION 3.5 Certificate of the Issuer and the Guarantors................16
SECTION 3.6 Securityholders Lists.......................................17
SECTION 3.7 Reports by the Issuer and Tyco..............................17
SECTION 3.8 Reports by the Trustee......................................17
SECTION 3.9 Limitations on Liens........................................17
SECTION 3.10 Limitation on Sale and Lease-Back Transactions..............19
SECTION 3.11 Limitation on Indebtedness of Subsidiaries..................20
SECTION 3.12 Notice to Trustee...........................................20
ARTICLE FOUR..................................................................20
SECTION 4.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default..........................................21
SECTION 4.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt.....................................23
SECTION 4.3 Application of Proceeds.....................................25
SECTION 4.4 Suits for Enforcement.......................................26
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings.........26
SECTION 4.6 Limitations on Suits by Securityholders.....................26
SECTION 4.7 Unconditional Right of Securityholders to Institute
Certain Suits..............................................27
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default......................................27
SECTION 4.9 Control by Securityholders..................................27
i
<PAGE>
SECTION 4.10 Waiver of Past Defaults.....................................28
SECTION 4.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances..........................28
SECTION 4.12 Right of Court to Require Filing of Undertaking
to Pay Costs...............................................29
ARTICLE FIVE..................................................................29
SECTION 5.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default..................................29
SECTION 5.2 Certain Rights of the Trustee...............................30
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof...........31
SECTION 5.4 Trustee and Agents May Hold Securities;
Collections, etc...........................................31
SECTION 5.5 Moneys Held by Trustee......................................31
SECTION 5.6 Compensation and Indemnification of Trustee and
Its Prior Claim............................................32
SECTION 5.7 Right of Trustee to Rely on Officers'
Certificate, etc...........................................32
SECTION 5.8 Persons Eligible for Appointment as Trustee.................32
SECTION 5.9 Resignation and Removal; Appointment of Successor
Trustee....................................................32
SECTION 5.10 Acceptance of Appointment by Successor Trustee..............34
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business of Trustee.....................................34
ARTICLE SIX...................................................................35
SECTION 6.1 Evidence of Action Taken by Securityholders.................35
SECTION 6.2 Proof of Execution of Instruments and of Holding
of Securities; Record Date.................................35
SECTION 6.3 Holders to be Treated as Owners.............................35
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding...........36
SECTION 6.5 Right of Revocation of Action Taken.........................36
ARTICLE SEVEN.................................................................37
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders............................................37
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders............................................38
SECTION 7.3 Effect of Supplemental Indenture............................39
SECTION 7.4 Documents to Be Given to Trustee............................39
SECTION 7.5 Notation on Securities in Respect of
Supplemental Indentures....................................39
ARTICLE EIGHT.................................................................39
SECTION 8.1 Issuer and Guarantors May Consolidate, etc.,
on Certain Terms...........................................39
SECTION 8.2 Successor Corporation Substituted...........................39
SECTION 8.3 Opinion of Counsel to Trustee...............................40
SECTION 8.4 Exception Applicable to Certain Guarantors..................40
ARTICLE NINE..................................................................40
SECTION 9.2 Issuer's Option to Effect Defeasance or
Covenant Defeasance........................................41
ii
<PAGE>
SECTION 9.3 Defeasance and Discharge....................................41
SECTION 9.4 Covenant Defeasance.........................................42
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance.............42
SECTION 9.6 Application by Trustee of Funds Deposited for
Payment of Securities......................................44
SECTION 9.7 Repayment of Moneys Held by Paying Agent....................44
SECTION 9.8 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years..............................44
SECTION 9.9 Indemnity for Direct Obligations of the
United States..............................................44
SECTION 9.10 Reinstatement...............................................44
ARTICLE TEN...................................................................45
SECTION 10.1 Incorporators, Shareholders, Officers and
Directors of Issuer and Guarantors Exempt from
Individual Liability.......................................45
SECTION 10.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders................................45
SECTION 10.3 Successors and Assigns of Issuer and Guarantors
Bound by Indenture.........................................45
SECTION 10.4 Notices and Demands on Issuer, Guarantors Trustee
and Securityholders........................................45
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein.........................46
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays.............47
SECTION 10.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939......................................47
SECTION 10.8 New York Law to Govern......................................47
SECTION 10.8 Consent to Jurisdiction and Service of Process..............47
SECTION 10.8 Judgement Currency..........................................48
SECTION 10.9 Counterparts................................................48
SECTION 10.10 Effect of Headings..........................................8
ARTICLE ELEVEN................................................................49
SECTION 11.1 Applicability of Article....................................49
SECTION 11.2 Notice of Redemption; Partial Redemptions...................49
SECTION 11.3 Payment of Securities Called for Redemption.................50
SECTION 11.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption...............................50
SECTION 11.5 Mandatory and Optional Sinking Funds........................50
ARTICLE TWELVE................................................................52
SECTION 12.1 Redemption Upon Changes in Withholding Taxes................52
SECTION 12.2 Payment of Additional Amounts...............................53
ARTICLE THIRTEEN..............................................................54
SECTION 13.1 Guarantee...................................................54
SECTION 13.2 Execution and Delivery of Guarantees........................56
SECTION 13.3 Release of Guarantees.......................................57
iii
<PAGE>
SECTION 13.4 Additional Guarantors.......................................57
iv
<PAGE>
THIS INDENTURE, dated as of ________ __, 1998, among TYCO
INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), TYCO
INTERNATIONAL LTD., a Bermuda company ("Tyco"), and THE BANK OF NEW YORK, a New
York banking corporation (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of its
unsecured debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, and the Issuer has duly authorized the execution and
delivery of this Indenture;
WHEREAS, Tyco has duly authorized the execution and delivery of this
Indenture and deems it appropriate from time to time to issue its guarantees of
the Securities on the terms and substantially in the form herein provided; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
holders thereof, the Issuer, Tyco and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939 or the definitions
of which in the Securities Act of 1933 are referred to in the Trust Indenture
Act of 1939, including terms defined therein by reference to the Securities Act
of 1933 (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the terms "generally accepted accounting principles"
means such accounting principles as are generally accepted in the United States
at the time of any computation. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at the
time such Person becomes a Restricted Subsidiary or (ii) assumed in connection
with the acquisition of assets by such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary or such acquisition, as the case
1
<PAGE>
may be.
"Affiliate" means, with respect to any specified Person: (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person; (ii) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Capital
Stock or any officer or director of any such specified Person or other Person;
(iii) any other Person 10% or more of the Voting Stock of which is beneficially
owned or held directly or indirectly by such specified Person. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Attributable Debt" means in connection with a Sale and Lease-Back
Transaction, as of any particular time, the aggregate of present values
(discounted at a rate per annum equal to the average interest borne by all
outstanding Debt Securities (or, if set forth in a resolution of the Board of
Directors or a supplemental indenture pursuant to Section 2.4 with respect to
one or more series, the Outstanding Securities of such series) determined on a
weighted average basis and compounded semi-annually) of the obligations of the
Issuer or any Restricted Subsidiary for net rental payments during the remaining
term of the applicable lease (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). The term "net rental
payments" under any lease of any period shall mean the sum of the rental and
other payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, reconstruction, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales,
maintenance and repairs, reconstruction, insurance, taxes, assessments, water
rates or similar charges.
"Board of Directors" means either the Board of Directors of the Issuer,
Tyco or any other Guarantor, as the case may be, or any committee of such Board
of Directors duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the city
(or in any of the cities, if more than one) in which amounts are payable, as
specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights in or other equivalents (however designated) of such
Person's capital stock, other equity interests whether now outstanding or issued
after the date of this Indenture, partnership interests, (whether general or
limited), any other interest or participation that confers on a Person that
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person and any rights (other than debt securities
convertible into Capital Stock), warrants or options exchangeable for or
convertible into such Capital Stock.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act of 1939, then the body performing such duties on such date.
"Consolidated Net Worth" means, at any date, the total assets less the
total
2
<PAGE>
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 101 Barclay Street, 21 W, New York, New York
10286, 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
<PAGE>
the deferred purchase price of property or services, except trade accounts
payable arising in the ordinary course of business, (v) all obligations as
lessee which are capitalized in accordance with generally accepted accounting
principles, and (vi) all Indebtedness of others guaranteed by the Issuer or any
of its subsidiaries or for which the Issuer or any of its subsidiaries is
legally responsible or liable (whether by agreement to purchase indebtedness of,
or to supply funds or to invest in, others).
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Five) Tyco
International Group S.A., and, subject to Article Eight, its successors and
assigns.
"Non-Recourse Indebtedness" means Indebtedness the enforcement of which
recourse may be had by the holder(s) thereof only to identified assets of the
Issuer, Tyco or any Subsidiary and not to the Issuer, Tyco or any Subsidiary
personally.
"Officers' Certificate" means a certificate signed by two managing
directors or by the chairman or any vice chairman of the Board of Directors or
the president or any vice president and by the treasurer or any assistant
treasurer or the secretary or any assistant secretary of the Issuer, Tyco or any
other Guarantor, as the case may be, and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 10.5.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Issuer and who shall be satisfactory
to the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 10.5,
if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means a Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1.
"Outstanding", when used with reference to Securities, shall, subject to
the provisions of Section 6.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and
4
<PAGE>
held in trust by the Issuer for the Holders of such Securities (if the
Issuer shall act as its own paying agent), provided that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 4.1.
"Permitted Subsidiary Indebtedness" means any of the following: (i)
Indebtedness in an aggregate amount, without duplication, not to exceed, as of
the date of determination, 5% of the Consolidated Tangible Assets of the Issuer
(which Indebtedness is exclusive of the Indebtedness described in clauses (ii)
through (viii) hereof), (ii) Indebtedness owed to the Company, Tyco or any
Subsidiary, (iii) obligations under standby letters of credit or similar
arrangements supporting the performance of a Person under a contract or
agreement in the ordinary course of business, (iv) obligations as lessee in the
ordinary course of business which are capitalized in accordance with United
States generally accepted accounting principles, (v) Indebtedness that was
Permitted Subsidiary Indebtedness at the time that it was first incurred, (vi)
Acquired Indebtedness that by its terms is not callable or redeemable prior to
its stated maturity and that remains outstanding following such time as the
Subsidiary obligated under such Acquired Indebtedness in good faith has made or
caused to be made an offer to acquire all such Indebtedness on terms which, in
the opinion of an independent investment banking firm of national reputation and
standing, are consistent with market practices in existence at the time for
offers of a similar nature, provided that the initial expiration date of any
such offer shall not be later than the expiration of the time period set forth
in Section 3.11(c), (vii) Indebtedness outstanding on the date of the Indenture
and (viii) any renewals, extensions, substitutions, refundings, refinancings or
replacements (collectively, a "refinancing") of any Indebtedness referred to in
clause (vii) of this definition of "Permitted Subsidiary Indebtedness" of a
Subsidiary organized under a jurisdiction other than the United States or any
State thereof or the District of Columbia, including any successive refinancings
so long as the borrower under such refinancing is such a Subsidiary and the
aggregate principal amount of Indebtedness represented thereby (or if such
Indebtedness provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity thereof, the
original issue price of such Indebtedness plus any accreted value attributable
thereto since the original issuance of such Indebtedness) is not increased by
such refinancing plus the lesser of (A) the stated amount of any premium or
other payment required to be paid in connection with such a refinancing pursuant
to the terms of the Indebtedness being refinanced or (B) the amount of premium
or other payment actually paid at such time to refinance the Indebtedness, plus,
in either case, the amount of expenses of such Subsidiary incurred in connection
with such refinancing.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political
5
<PAGE>
subdivision thereof.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any".
"Principal Property" means any manufacturing, processing or assembly plant
or facility or any warehouse or distribution facility which is used by any U.S.
Subsidiary after the date hereof, other than any such plants, facilities,
warehouses or portions thereof, which in the opinion of the Board of Directors
of the Issuer, are not collectively of material importance to the total business
conducted by the Issuer and its Restricted Subsidiaries as an entirety, or
which, in each case, has a book value, on the date of the acquisition or
completion of the initial construction thereof by the Issuer, of less than 1.5%
of Consolidated Tangible Assets.
"Responsible Officer" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any
assistant secretary, any assistant treasurer, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary which owns or leases a
Principal Property.
"Sale and Lease-Back Transaction" means an arrangement with any Person
providing for the leasing by the Issuer or a Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Issuer or a Restricted Subsidiary to such Person; provided,
however, that the foregoing shall not apply to any such arrangement involving a
lease for a term, including renewal rights, for not more than three years.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture, or, as the case may be, Securities that have been authenticated
and delivered under this Indenture.
"Significant Subsidiary Guarantor" means any one or more Guarantors (other
than Tyco) which, at the date of determination, together with its or their
respective Subsidiaries in the aggregate, (i) for the most recently completed
fiscal year of the Issuer accounted for more than 10% of the consolidated
revenues of the Issuer or (ii) at the end of such fiscal year, was the owner
(beneficial or otherwise) of more than 10% of the consolidated assets of the
Issuer, as determined in accordance with generally accepted accounting
principles and reflected on the Issuer's consolidated financial statements.
"Subsidiary" means any Person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Issuer or by one or more Subsidiaries or by the Issuer and one
or more Subsidiaries.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Five, shall also include any
successor trustee.
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"Trust Indenture Act of 1939" (except as otherwise provided in Sections 7.1
and 7.2) means the Trust Indenture Act of 1939 as in force at the date as of
which this Indenture was originally executed.
"vice president" when used with respect to the Issuer, Tyco, any other
Guarantor or the Trustee, means any vice president, whether or not designated by
a number or a word or words added before or after the title of "vice president".
"Voting Stock" of a Person means Capital Stock of such Person of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity on a series of Securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of Directors of the
Issuer, or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with any rules of any securities exchange or
to conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of
such Securities.
SECTION 2.2. Form of Guarantee. The form of Guarantee shall be set forth on
the Securities substantially as follows:
GUARANTEE
For value received, Tyco hereby absolutely, unconditionally and irrevocably
guarantees to the holder of this Security the payment of principal of, interest
on and Additional Amounts in respect of this Security upon which this Guarantee
is endorsed in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest, if any, of this Security, if lawful, and the payment or performance of
all other obligations of the Issuer under the Indenture or the Securities, to
the holder of this Security and the Trustee, all in accordance with and subject
to the terms and limitations of this Security and Article Thirteen of the
Indenture. This Guarantee will not become effective until the
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Trustee duly executes the certificate of authentication on this Security. This
Guarantee shall be governed by and construed in accordance with the laws of the
State of New York, without regard to conflict of law principles thereof.
Dated:
TYCO INTERNATIONAL LTD.
By:
-------------------------------------
Name:
Title:
Attest:
-----------------------------
Name:
Title:
SECTION 2.3 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By
-------------------------------------
Authorized Signatory
SECTION 2.4 Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors of the
Issuer and set forth in an Officers' Certificate of the Issuer, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.9, 2.10, 2.12 or 11.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate shall be determined, the
date or dates from which such interest shall accrue, the interest payment
dates on which such interest shall be payable and the record dates for the
determination of Holders to whom interest is payable;
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(5) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(6) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(7) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(8) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in bankruptcy pursuant to Section 4.2;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and the
Depositary for Global Security or Securities;
(10) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(11) if other than the Trustee, any trustees, authenticating or paying
agents, transfer agents or registrars or any other agents with respect to
the Securities of such series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto.
SECTION 2.5 Authentication and Delivery of Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Issuer may
deliver Securities (with Guarantees endorsed thereon) of any series executed by
the Issuer to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Issuer, signed by any two managing directors or by both (a) the chairman of its
Board of Directors, or any vice chairman of its Board of Directors, or its
president or vice president and (b) its secretary or any assistant secretary or
its treasurer or any assistant treasurer, without any further action by the
Issuer. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 5.1) shall be
fully protected in relying upon:
(1) a certified copy of any resolution or resolutions of the Board of
Directors of the Issuer authorizing the action taken pursuant to the
resolution or resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of Directors
of the Issuer relating to such series, in each case certified by a managing
director or by the secretary or any assistant secretary of the Issuer;
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(3) an executed supplemental indenture setting forth the form and
terms of the Securities as required pursuant to Sections 2.1 and 2.4
respectively, if any;
(4) an Officers' Certificate of the Issuer setting forth the form and
terms of the Securities as required pursuant to Section 2.1 and 2.4,
respectively and prepared in accordance with Section 10.5;
(5) an Opinion of Counsel, prepared in accordance with Section 10.5,
to the effect that
(a) that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
of the Issuer or by a supplemental indenture as permitted by Sections
2.1 and 2.4 in conformity with the provisions of this Indenture;
(b) that such Securities, when authenticated in accordance with
the terms of this Indenture and delivered by the Trustee and issued by
and delivered by or to the order of the Issuer, against payment
therefor, in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding obligations
of the Issuer;
(c) that all laws and requirements in respect of the execution
and delivery by the Issuer of the Securities have been complied with;
and
(d) covering such other matters as the Trustee may reasonably
request.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders.
SECTION 2.6 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by any two managing directors or by both (a) the chairman
of its Board of Directors or any vice chairman of its Board of Directors or its
president or any vice president and (b) the its treasurer or any assistant
treasurer or its secretary or any assistant secretary, under its corporate seal
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. The seal of the
Issuer may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any managing director or officer of the Issuer who shall have
signed any of the Securities shall cease to be such managing director or officer
before the Security so signed shall be authenticated and delivered by the
Trustee or disposed of by the Issuer, such Security nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Security had not ceased to be such officer of the Issuer; and any Security may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security, shall
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be the proper managing directors or officers of the Issuer, although at the date
of the execution and delivery of this Indenture any such Person was not such a
managing director or an officer.
SECTION 2.7 Certificate of Authentication. Only such Securities (and
Guarantees endorsed thereon) as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized signatories, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the holder is entitled to
the benefits of this Indenture.
SECTION 2.8 Denomination and Date of Securities; Payments of Interest. The
Securities shall be issuable as registered securities without coupons and in
denominations as shall be specified as contemplated by Section 2.4. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.4.
The Person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall not
be less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.9 Registration, Transfer and Exchange. The Issuer will keep or
cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.2 a Security register or registers in which, subject to
such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Securities as in this Article provided. Such register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all reasonable times
such Security register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or
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transferees a new Security or Securities of the same series in authorized
denominations for a like aggregate principal amount, and the Issuer shall record
or cause to be recorded the transfer in the Security register or registers.
Any Security or Securities of any series may be exchanged for a Security or
Securities of the same series in other authorized denominations, in an equal
aggregate principal amount. Securities of any series to be exchanged shall be
surrendered at any office or agency to be maintained by the Issuer for the
purpose as provided in Section 3.2, and the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor the Security or Securities
of the same series which the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange, redemption
or payment shall (if so required by the Issuer or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee, duly executed by the Holder or his
attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing of notice of redemption of Securities of such series to be redeemed, or
(b) any Securities selected, called or being called for redemption except, in
the case of any Security where public notice has been given that such Security
is to be redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
None of the Issuer, the Trustee or any Paying Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial interests.
SECTION 2.10 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustees) connected therewith. In case any security which
has matured or is about to mature or has been called for
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redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer of the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.11 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Securities held by it and deliver
a certificate of destruction to the Issuer. If the Issuer shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.12 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the issuer shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.2, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
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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 and the Trustee will authenticate and deliver individual
Securities in definitive registered form in authorized denominations. Upon the
exchange of a Global Security for individual Securities, such Global Security
shall be cancelled by the Trustee. Securities issued in exchange for a Global
Security pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each installment of interest on
the Securities of any series may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any of the Securities
remain outstanding, the Issuer will maintain in The Borough of Manhattan, The
City of New York for each series: an office or agency (a) where the Securities
may be presented for payment, (b) where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided and (c)
where notices and demands to or upon the Issuer in respect of the Securities or
of this Indenture may be served. The Issuer will give to the Trustee written
notice of the location of any such office or agency and of any change of
location thereof. Unless otherwise specified in accordance with Section 2.4, the
Issuer hereby initially designates the Corporate Trust Office of The Bank of New
York, 101 Barclay Street, 21 W, New York, New York 10286, acting as the Issuer's
agent, as the office to be maintained by it for each such purpose. In case the
Issuer shall fail to so designate or maintain any such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of the Trustee, will
appoint, in the manner provided in Section 5.9, a Trustee, so that there shall
at all times be a Trustee with respect to each series of Securities hereunder.
SECTION 3.4 Paying Agent. Whenever the Issuer shall appoint a paying agent
other than the Trustee with respect to the Securities of any series, it will
cause such paying agent
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to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section.
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the failure
referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer may at
any time, for the purpose of obtaining a satisfaction and discharge with respect
to one or more or all series of Securities hereunder, or for any other reason,
pay or cause to be paid to the Trustee all sums held in trust for any such
series by the Issuer or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Section 9.3 and 9.4
SECTION 3.5 Certificate of the Issuer and the Guarantors. So long as any of
the Securities remain outstanding, the Issuer, Tyco and any other Guarantor will
furnish to the Trustee on or before March 31 in each year (beginning with 1999)
a brief certificate (which need not comply with Section 10.5) executed by the
principal executive, financial or accounting officer of each of the Issuer, Tyco
and such Guarantor on their respective behalf as to his or her knowledge of the
Issuer's, Tyco's and such Guarantor's, as the case may be, compliance with all
covenants and agreements under the Indenture required to be complied with by the
Issuer, Tyco and such Guarantor, respectively, (such compliance to be determined
without regard to any period of grace or requirement of notice provided under
the Indenture). Such certificate need not include a reference to any
non-compliance that has been fully cured prior to the date as of which such
certificate speaks.
SECTION 3.6 Securityholders Lists. If and so long as the Trustee shall not
be the Security registrar for the Securities of any series, the Issuer will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act
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of 1939 (a) semi-annually not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.4 for
non-interest bearing securities in each year, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 3.7 Reports by the Issuer and Tyco. So long as any of the
Securities remain outstanding, the Issuer and Tyco each covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information, documents,
and other reports which the Issuer and Tyco may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; provided, however, that the Issuer and Tyco shall have no
obligation to file such reports with the Trustee as long as no Securities of any
series are outstanding.
SECTION 3.8 Reports by the Trustee. Any Trustee's report required under
Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or
before July 15 in each year following the date hereof, so long as any Securities
are outstanding hereunder, and shall be dated as of a date convenient to the
Trustee no more than 60 nor less than 45 days prior thereto.
SECTION 3.9 Limitations on Liens. After the date hereof and so long as any
Securities are Outstanding (but subject to defeasance, as provided in the
Indenture), the Issuer will not, and will not permit any Restricted Subsidiary
to, issue, assume or guarantee any Indebtedness which is secured by a mortgage,
pledge, security interest, lien or encumbrance (each a "lien") upon any
Principal Property, or any shares of stock of or Indebtedness issued by any
Restricted Subsidiary, whether now owned or hereafter acquired, without
effectively providing that, for so long as such lien shall continue in existence
with respect to such secured Indebtedness, the Securities (together with, if the
Issuer shall so determine, any other Indebtedness of the Issuer ranking equally
with the Securities, it being understood that for purposes hereof, Indebtedness
which is secured by a lien and Indebtedness which is not so secured shall not,
solely by reason of such lien, be deemed to be of different ranking) shall be
equally and ratably secured by a lien ranking ratably with or equal to (or at
the Issuer's option prior to) such secured Indebtedness; provided, however, that
the foregoing covenant shall not apply to:
(a) liens existing on the date the Securities of the subject series are
issued;
(b) liens on the stock, assets or Indebtedness of a corporation existing at
the same time such corporation becomes a Restricted Subsidiary unless created in
contemplation of such Restricted Subsidiary becoming such;
(c) liens on any assets or Indebtedness of a corporation existing at the
time such corporation is merged into the Issuer or a Subsidiary or at the time
of a purchase, lease or other acquisition of the assets of a corporation or firm
as an entirety or substantially as an entirety by the Issuer or Subsidiary;
(d) liens on any Principal Property existing at the time of acquisition
thereof by the Issuer or any Restricted Subsidiary, or liens to secure the
payment of the purchase price of such Principal Property by the Issuer or any
Restricted Subsidiary, or to secure any Indebtedness incurred, assumed or
guaranteed by the Issuer or a Restricted Subsidiary for the purpose of financing
all or any part of the purchase price of such Principal Property or improvements
or construction thereon, which Indebtedness is incurred, assumed or guaranteed
prior to, at the time of, or within one year after such acquisition (or in the
case of real property, completion of such
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improvement or construction or commencement of full operation of such property,
whichever is later); provided, however, that in the case of any such
acquisition, construction or improvement, the lien shall not apply to any
Principal Property theretofore owned by the Issuer or a Restricted Subsidiary,
other than the Principal Property so acquired, constructed or improved;
(e) liens securing Indebtedness owing by any Restricted Subsidiary to the
Issuer, Tyco or a Subsidiary or by the Issuer to Tyco;
(f) liens in favor of the United States or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract, statute, rule or regulation or to secure any
Indebtedness incurred or guaranteed for the purpose of financing all or any part
of the purchase price (or, in the case of real property, the cost of
construction or improvement) of the Principal Property subject to such liens
(including but not limited to, liens incurred in connection with pollution
control, industrial revenue or similar financings);
(g) pledges, liens or deposits under worker's compensation or similar
legislation, and liens thereunder which are not currently dischargeable, or in
connection with bids, tenders, contracts (other than for the payment of money)
or leases to which the Issuer or any Restricted Subsidiary is a party, or to
secure the public or statutory obligations of the Issuer or any Restricted
Subsidiary, or in connection with obtaining or maintaining self-insurance, or to
obtain the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar matters, or
to secure surety, performance, appeal or customs bonds to which the Issuer or
any Restricted Subsidiary is a party, or in litigation or other proceedings in
connection with the matters heretofore referred to in this clause, such as, but
not limited to, interpleader proceedings, and other similar pledges, liens or
deposits made or incurred in the ordinary course of business;
(h) liens created by or resulting from any litigation or other proceeding
which is being contested in good faith by appropriate proceedings, including
liens arising out of judgments or awards against the Issuer or any Restricted
Subsidiary with respect to which the Issuer or such Restricted Subsidiary is in
good faith prosecuting an appeal or proceedings for review or for which the time
to make an appeal has not yet expired; or final unappealable judgment liens
which are satisfied within 15 days of the date of judgment; or liens incurred by
the Issuer or any Restricted Subsidiary for the purpose of obtaining a stay or
discharge in the course of any litigation or other proceeding to which the
Issuer or such Restricted Subsidiary is a party;
(i) liens for taxes or assessments or governmental charges or levies not
yet due or delinquent; or which can thereafter be paid without penalty, or which
are being contested in good faith by appropriate proceedings; landlord's liens
on property held under lease; and any other liens or charges incidental to the
conduct of the business of the Issuer or any Restricted Subsidiary, or the
ownership of their respective assets, which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit and which do not,
in the opinion of the Board of Directors of the Issuer, materially impair the
use of such assets in the operation of the business of the Issuer or such
Restricted Subsidiary or the value of such Principal Property for the purposes
of such business;
(j) liens to secure the Issuer's or any Restricted Subsidiary's obligations
under agreements with respect to spot, forward, future and option transactions,
entered into in the ordinary course of business;
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(k) liens not permitted by the foregoing clauses (a) to (j), inclusive, if
at the time of, and after giving effect to, the creation or assumption of any
such lien, the aggregate amount of all outstanding Indebtedness of the Issuer
and its Restricted Subsidiaries (without duplication) secured by all such liens
not so permitted by the foregoing clauses (a) through (j), inclusive, together
with the Attributable Debt in respect of Sale and Lease-Back Transactions
permitted by paragraph (a) under Section 3.10 do not exceed the greater of
$100,000,000 and 10% of Consolidated Net Worth; and
(l) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part, of any lien referred to in the
foregoing clauses (a) to (k), inclusive; provided, however, that the principal
amount of Indebtedness secured thereby unless otherwise excepted under clauses
(a) through (k) shall not exceed the principal amount of Indebtedness so secured
at the time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the assets (or any
replacements therefor) which secured the lien so extended, renewed or replaced
(plus improvements and construction on real property).
SECTION 3.10 Limitation on Sale and Lease-Back Transactions. The Issuer
will not, and will not permit any Restricted Subsidiary to, enter into any Sale
and Lease-Back Transaction unless:
(a) the Issuer or such Restricted Subsidiary would, at the time of entering
into a Sale and Lease-Back Transaction, be entitled to incur Indebtedness
secured by a lien on the Principal Property to be leased in an amount at least
equal to the Attributable Debt in respect of such Sale and Lease-Back
Transaction, without equally and ratably securing the Securities pursuant to
Section 3.9; or
(b) the direct or indirect proceeds of the sale of the Principal Property
to be leased are at least equal to the fair value of such Principal Property (as
determined by the Issuer's Board of Directors) and an amount equal to the net
proceeds from the sale of the property or assets so leased are applied, within
180 days of the effective date of any such Sale and Lease-Back Transaction, to
the purchase or acquisition (or, in the case of real property, commencement of
the construction) of property or assets or to the retirement (other than at
maturity or pursuant to a mandatory sinking fund or mandatory redemption
provision) of Securities, or of Funded Indebtedness of the Issuer or a
consolidated Subsidiary ranking on a parity with or senior to the Securities;
provided that there shall be credited to the amount of net worth proceeds
required to be applied pursuant to this clause (b) an amount equal to the sum of
(i) the principal amount of Securities delivered within 180 days of the
effective date of such Sale and Lease-Back Transaction to the Trustee for
retirement and cancellation and (ii) the principal amount of other Funded
Indebtedness voluntarily retired by the Issuer within such 180-day period,
excluding retirements of Securities and other Funded Indebtedness as a result of
conversions or pursuant to mandatory sinking fund or mandatory prepayment
provisions.
SECTION 3.11 Limitation on Indebtedness of Subsidiaries. (a) The Issuer
will not cause or permit any Subsidiary (which is not a Guarantor), directly or
indirectly, to create, incur, assume, guarantee or otherwise in any manner
become liable for the payment of or otherwise incur (collectively, "incur"), any
Indebtedness (including any Acquired Indebtedness but excluding any Permitted
Subsidiary Indebtedness) unless such Subsidiary simultaneously executes and
delivers a supplemental indenture to the Indenture providing for a Guarantee of
the Securities as provided in Section 3.14.
(b) Notwithstanding the foregoing, any Guarantee by a Subsidiary of the
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Securities shall provide by its terms that it (and all liens securing the same)
shall be automatically and unconditionally released and discharged upon (i) any
sale, exchange or transfer, to any Person not an Affiliate of the Issuer, of all
of the Issuer's equity interests in, or all or substantially all the assets of,
such Subsidiary, which transaction is in compliance with the terms of this
Indenture and such Subsidiary is released from all guarantees, if any, by it of
other Indebtedness of the Issuer or any Subsidiaries, (ii) the payment in full
of all obligations under the Indebtedness giving rise to such Guarantee and
(iii) with respect to Indebtedness described in clause (a) above constituting
guarantees, the release by the holders of such Indebtedness of the guarantee by
such Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness), at such time as (A) no other Indebtedness
(other than Permitted Subsidiary Indebtedness) has been guaranteed by such
Subsidiary, as the case may be, or (B) the holders of all such other
Indebtedness which is guaranteed by such Subsidiary also release the guarantee
by such Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness).
(c) For purposes of this Section 3.11, any Acquired Indebtedness shall not
be deemed to have been incurred until 180 days from the date (A) the Person
obligated on such Acquired Indebtedness becomes a Subsidiary or (B) the
acquisition of assets in connection with which such Acquired Indebtedness was
assumed is consummated.
SECTION 3.12 Notice to Trustee. The Issuer, Tyco or any other Guarantor
shall provide written notice to the Trustee within 30 days of the occurrence of
any Event of Default under Section 4.1.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of
such series; or
(d) default in the performance, or breach, of any covenant or
agreement of the Issuer, Tyco or any other Guarantor in respect of the
Securities of such series
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and related Guarantees (other than a covenant or agreement in respect of
the Securities of such series and related Guarantees a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 90 days
after the date on which there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
of all series affected thereby, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) an event of default, as defined in any indenture, including this
Indenture, or instrument evidencing or under which the Issuer, Tyco or any
other Guarantor on the date any determination shall be made under this
clause (g), shall have outstanding at least $50,000,000 aggregate principal
amount of Indebtedness for borrowed money (other than Non-Recourse
Indebtedness), shall happen and be continuing and such event of default
shall involve the failure to pay the principal of or interest on such
Indebtedness (or any part thereof) on the final maturity date thereof after
the expiration of any applicable grace period with respect thereto, or such
Indebtedness shall have been accelerated so that the same shall be or
become due and payable prior to the date on which the same would otherwise
have become due and payable, and such acceleration shall not be rescinded
or annulled within ten Business Days after notice thereof shall have been
given to the Issuer, Tyco or such Guarantor, as the case may be, by the
Trustee (if such event be known to it), or to the Issuer, Tyco or such
Guarantor, as the case may be, and the Trustee by the Holders of at least
25% in aggregate principal amount of all of the Securities at the time
Outstanding (treated as one class); provided that, if such event of default
under such indenture or instrument shall be remedied or cured by the
Issuer, Tyco or such Guarantor, as the case may be, or waived by the
requisite holders of such indebtedness, then the Event of Default hereunder
by reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the Trustee
or any of the Securityholders, and provided further, however, that subject
to the provisions of Sections 5.1 and 5.2, the Trustee shall not be charged
with knowledge of any such event of default unless written notice thereof
shall have been given to the Trustee by the Issuer, Tyco or such Guarantor,
as the case may be, by the holder of an agent of the holder of any such
Indebtedness, by the trustee then acting under any indenture or other
instrument under which such default shall have occurred, or by the Holders
of not less than 25% in the aggregate principal amount of the Securities at
the time Outstanding (treated as one class);
(f) any Guarantee shall for any reason cease to be, or shall for any
reason be asserted in writing by any Guarantor or the Issuer not to be in
full force and effect and enforceable in accordance with its terms except
to the extent contemplated by the Indenture and any such Guarantee;
(g) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer, Tyco or any Significant
Subsidiary Guarantor in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer, Tyco or such Significant
Subsidiary Guarantor or for any substantial part of its property or
ordering the winding up or liquidation of its affairs, and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(h) the Issuer, Tyco or any Significant Subsidiary Guarantor shall
commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or
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hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Issuer, Tyco or such
Significant Subsidiary Guarantor or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
(i) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of
Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (d), (f) or (i) above
(if the Event of Default under clause (d) or (i), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (d) or
(i) (if the Event of Default under clause (d) or (i), as the case may be, is
with respect to all series of Securities then Outstanding), (e), (g) or (h)
occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Issuer (and the to Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then outstanding and
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer, Tyco or any other Guarantor shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of such series (or
of all the Securities, as the case may be) which shall have become due otherwise
than by acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series (or at the respective rates of interest or Yields to
Maturity of all the Securities, as the case may be) to the date of such payment
or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal of Securities
which shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein -- then and in every such case the Holders
of a majority in aggregate principal amount of all the
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Securities of such series, each series voting as a separate class (or of all the
Securities, as the case may be, voting as a single class), then outstanding, by
written notice to the Issuer and to the Trustee, may waive all defaults with
respect to such series (or with respect to all the Securities, as the case may
be) and rescind and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.
Each of the Issuer, Tyco and any other Guarantor covenants that (a) in case
default shall be made in the payment of any installment of interest on any of
the Securities of any series when such interest shall have become due and
payable, and such default shall have continued for a period of 30 days or (b) in
case default shall be made in the payment of all or any part of the principal of
any of the Securities of any series when the same shall have become due and
payable, whether upon maturity of the Securities of such series or upon any
redemption or by declaration or otherwise -- then upon demand of the Trustee,
the Issuer, Tyco and such Guarantor will pay to the Trustee for the benefit of
the Holders of the Securities of such series the whole amount that then shall
have become due and payable on all Securities of series for principal or
interest, as the case may be (with interest to the date of such payment upon the
overdue principal and to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series); and in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal
of and interest on the Securities of any series to the Holders, whether or not
the principal of and interest on the Securities of such series be overdue.
In case the Issuer, Tyco or any other Guarantor shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer,
Tyco, such Guarantor or other obligor upon such Securities and collect in the
manner provided by law out of the property of the Issuer, Tyco, such Guarantor
or other obligor upon such Securities, wherever situated, the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings relative to the Issuer, Tyco,
any other Guarantor or any other obligor upon the Securities under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a
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receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer, Tyco or such Guarantor or their respective property or
such other obligor or its property, or in case of any other comparable judicial
proceedings relative to the Issuer, Tyco, such Guarantor or other obligor upon
the Securities of any series, or to the creditors or property of the Issuer,
Tyco, such Guarantor or such other obligor, the Trustee, irrespective of whether
the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer Tyco, such Guarantor or
other obligor upon the Securities of any series, or to the creditors or
property of the Issuer Tyco, such Guarantor or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith and all other amounts
due to the Trustee or any predecessor Trustee pursuant to Section 5.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements
and
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compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by the Trustee
pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: in case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
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SECTION 4.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.6 Limitations on Suits by Securityholders. No Holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of such series
then outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 4.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and interest on such Security on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 4.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Securityholders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in
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addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 4.6, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Securityholders.
SECTION 4.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time Outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 5.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive any past default or Event of Default described in clause (d) or (i)
of Section 4.1 which relates to less than all series of Securities then
Outstanding, except a default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.2. Prior to a declaration of acceleration of the maturity
of the Securities of any series as provided in Section 4.1, the Holders of
Securities of a majority in principal amount of all the Securities then
Outstanding (voting as one class) may on behalf of all Holders waive any past
default or Event of Default referred to in said clause (d) or (i) which relates
to all series of Securities then Outstanding, or described in clause (e), (g) or
(h) of Section 4.1, except a default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder of
each Security affected as provided in Section 7.2. In the case of any such
waiver, the Issuer, Tyco, any other Guarantor, the Trustee and the Holders of
the Securities of each series affected shall be restored to their former
positions and rights hereunder, respectively.
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Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances. The Trustee shall give to the Securityholders of any series, as
the names and addresses of such Holders appear on the registry books, notice by
mail of all defaults known to the Trustee which have occurred with respect to
such series, such notice to be transmitted within 90 days after the occurrence
thereof, unless such defaults shall have been cured before the giving of such
notice (the term "default" or "defaults" for the purposes of this Section being
hereby defined to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking or purchase fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clauses (d) or (i) of Section 4.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clauses (d) or (i) (if the suit
relates to all the Securities then Outstanding), (e), (g) or (h) of Section 4.1,
10% in aggregate principal amount of all Securities Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred
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(which has not been cured or waived) the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 4.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 Certain Rights of the Trustee. In furtherance of and subject to
the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note,
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coupon, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by any managing director or the secretary or an
assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion of counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing so
to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation reasonably requested by the Holders as aforesaid shall
be paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of Securities
or Application of Proceeds Thereof. The recitals contained herein and in the
Securities, except the Trustee's certificates of authentication, shall be taken
as the statements of the Issuer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
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SECTION 5.4 Trustee and Agents May Hold Securities; Collections, etc. The
Trustee or any agent of the Issuer, Tyco, any other Guarantor or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer, Tyco or such Guarantor and
receive, collect, hold and retain collections from the Issuer, Tyco or such
Guarantor with the same rights it would have if it were not the Trustee or such
agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the provisions of Section
9.8 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except to the extent
any such expense, disbursement or advance may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each predecessor
trustee for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and the performance of its duties hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in the premises, except to the extent such loss liability
or expense is due to the negligence or bad faith of the Trustee or such
predecessor trustee. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor trustee and to pay or
reimburse the Trustee and each predecessor trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property
and funds hold or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities, and the Securities are
hereby subordinated to such senior claim.
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc. Subject
to Sections 5.1 and 5.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.8 Persons Eligible for Appointment as Trustee. The Trustee for
each series of Securities hereunder shall at all times be a corporation or
national banking association having a combined capital and surplus of at least
$50,000,000, and which is eligible in accordance with the provisions of Section
310(a) of the Trust Indenture Act of 1939. If such corporation or national
banking association publishes reports of condition at least annually, pursuant
to law or to
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the requirements of a Federal, State or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee. (a)
The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer and by mailing notice thereof by first class
mail to Holders of the applicable series of Securities at their last addresses
as they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors of the Issuer, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 4.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the Issuer
or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities
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of each series at the time outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee
with respect to the securities of such series by delivering to the Trustee
so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that regard taken by
the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 5.9 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 5.10.
SECTION 5.10 Acceptance of Appointment by Successor Trustee. Any successor
trustee appointed as provided in Section 5.9 shall execute and deliver to the
Issuer and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor trustee, upon payment of its charges then unpaid,
the trustee ceasing to act shall, subject to Section 9.8, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 5.6.
If a successor trustee is appointed with respect to the securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor trustee as provided in this
Section 5.10, the Issuer shall mail notice thereof by first-class mail to the
Holders of Securities of any series for which such successor trustee is acting
as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.9. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business of
Trustee. Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated, or any
corporation or national banking
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association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or national banking association
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation or national
banking association shall be eligible under the provisions of Section 5.8,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor trustee or to authenticate Securities of any series in the
name of any predecessor trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 5.1 and 5.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding of Securities;
Record Date. Subject to Sections 5.1 and 5.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The holding of Securities shall
be proved by the Security register or by a certificate of the registrar thereof.
The Issuer may set a record date for purposes of determining the identity of
holders of Securities of any series entitled to vote or consent to any action
referred to in Section 6.1, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates (in the case of any
adjournment or reconsideration) not more than 60 days nor less than five days
prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, only Holders of Securities of such
series of record on such record date shall be entitled to so vote or give such
consent or revoke such vote or consent.
SECTION 6.3 Holders to be Treated as Owners. The Issuer, Tyco, any other
Guarantor, the Trustee and any agent of the Issuer, Tyco, such Guarantor or the
Trustee may deem and treat the Person in whose name any Security shall be
registered upon the Security
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register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and none of the Issuer, Tyco, such
Guarantor or the Trustee or any agent of the Issuer, Tyco, such Guarantor or the
Trustee shall be affected by any notice to the contrary. All such payments so
made to any such Person, or upon his order, shall be valid, and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer, Tyco, any other Guarantor, or any other obligor on the Securities with
respect to which such determination is being made or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, Tyco, such Guarantor or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer, Tyco, such Guarantor or any other obligor upon the Securities
or any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, Tyco, such Guarantor or any
other obligor on the Securities. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer, Tyco or such Guarantor shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer, Tyco or such Guarantor to be owned or held by or for the account of
any of the above-described Persons; and, subject to Sections 5.1 and 5.2, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 6.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, Tyco, any other Guarantor, the
Trustee and the Holders of all the Securities affected by such action.
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ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders. The
Issuer, Tyco and any other Guarantor when authorized by resolutions of their
respective Board of Directors, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto for one or more
of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer or
any Guarantor, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer or any Guarantor such
further covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection of the
Holders of Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set
forth; provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors of the Issuer may deem necessary or
desirable and which shall not adversely affect the interests of the Holders
of the Securities in any material respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to add a Guarantor pursuant to the provisions of Sections 3.11 and
13.4; and
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 5.10.
The Trustee is hereby authorized to join with the Issuer, Tyco and any
other
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Guarantor in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities
at the time outstanding, notwithstanding any of the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Securityholders. With
the consent (evidenced as provided in Article Six) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, Tyco and any other Guarantor, when authorized by resolutions
of their respective Boards of Directors, and the Trustee may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
series; provided, that no such supplemental indenture shall (a) extend the final
maturity of any Security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.1 or the amount
thereof provable in bankruptcy pursuant to Section 4.2, or impair or affect the
right of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so affected,
or (b) reduce the aforesaid percentage of Securities of any series, the consent
of the Holders of which is required for any such supplemental indenture, without
the consent of the Holders of each Security so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors certified by a managing director or the secretary or an
assistant secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Securityholders as aforesaid and other documents, if any, required by
Section 6.1, the Trustee shall join with the Issuer, Tyco and any other
Guarantor in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture, or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer, Tyco, any other Guarantor and
the Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Issuer shall mail a notice thereof by first class mail to the
Holders of Securities of each series affected thereby at their addresses as they
shall appear on the registry books of the Issuer, setting forth in general terms
the substance of such supplemental indenture. Any failure of the Issuer to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution of any
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supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, Tyco, any other Guarantor and
the Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 5.1 and 5.2, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Seven complies with the applicable provisions
of this Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken at any
such meeting. If the Issuer or the Trustee shall so determine, new Securities of
any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer, Tyco
and any other Guarantor, and authenticated by the Trustee and delivered in
exchange for the Securities of such series then outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer and Guarantors May Consolidate, etc., on Certain Terms.
Each of the Issuer, Tyco and any other Guarantors, if any, covenants that it
will not merge or consolidate with any other Person or sell or convey all or
substantially all of its assets to any Person, unless (i) either the Issuer or
such Guarantor, as the case may be, shall be the continuing corporation, or the
successor corporation or the Person which acquires by sale or conveyance
substantially all the assets of the Issuer or such Guarantor, as the case may be
(if other than the Issuer or such Guarantor, as the case may be) shall expressly
assume the due and punctual payment of the principal of and interest on all the
Securities or the obligations under the Guarantees, as the case may be,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and agreements of this Indenture to be performed or
observed by the Issuer or such Guarantor, as the case may be, by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Issuer or such Guarantor, as the case may be, or
such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or agreement.
SECTION 8.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance in which the Issuer or any Guarantor,
as the case may be, is not the continuing corporation, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer or such Guarantor, as the case may
be, with the same effect as if it had been named herein. Such successor
corporation may cause to be signed, and may issue either in its own name or in
the name of the Issuer or such Guarantor, as the case may be, prior to such
succession any or all of the Securities or Guarantees as the case may be,
issuable hereunder which theretofore shall not
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have been signed by the Issuer or such Guarantor, as the case may be, and
delivered to the Trustee; and, upon the order of such successor corporation
instead of the Issuer or such Guarantor, as the case may be, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities or Guarantees, as the case
may be, which previously shall have been signed and delivered by the officers of
the Issuer or such Guarantor, as the case may be, to the Trustee for
authentication, and any Securities or Guarantees, as the case may be, which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities or Guarantees, as the case may
be, so issued shall in all respects have the same legal rank and benefit under
this Indenture as the Securities or Guarantees, as the case may be, theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Securities or such Guarantees, as the case may be, had been issued
at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities or Guarantees thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way
of lease) the Issuer or any Guarantor or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 8.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 5.1 and 5.2, may receive an opinion of Counsel, prepared
in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
SECTION 8.4 Exception Applicable to Certain Guarantors. The provisions of
this Article shall not apply to a merger, consolidation, sale or conveyance of a
Guarantor other than Tyco, if, in connection with such merger, consolidation,
sale or conveyance, the Guarantee of such Guarantor is released and discharged
in accordance with Section 3.11(b).
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time (a) the
Issuer or any Guarantor shall have paid or caused to be paid the principal of
and interest on all the Securities of any series outstanding hereunder (other
than Securities of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.10) as and when the
same shall have become due and payable, or (b) the Issuer shall have delivered
to the Trustee for cancellation all securities of any series theretofore
authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.10) or (c) (i) all the Securities of such series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or may, at the
option of the Issuer, be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (ii) the Issuer or any Guarantor shall have irrevocably deposited or caused
to be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Issuer in
accordance with
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Section 9.8) or direct obligations of the United States of America, backed by
its full faith and credit, maturing as to principal and interest in such amounts
and at such times as will insure the availability of cash sufficient to pay at
maturity or upon redemption all Securities of such series (other than any
Securities of such series which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.10) not
theretofore delivered to the Trustee for cancellation, including principal and
interest due or to become due on or prior to such date of maturity as the case
may be, and if, in any such case, the Issuer shall also pay or cause to be paid
all other sums payable hereunder by the Issuer with respect to Securities of
such series, then this Indenture shall cease to be of further effect with
respect to Securities of such series (except as to (i) rights of registration of
transfer and exchange of Securities of such series, and the Issuer's right of
optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (iii) rights of Holders to receive payments of
principal thereof and interest thereon upon the original stated due dates
therefor (but not upon acceleration) and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, in each case solely out of
property so deposited with the Trustee, and (iv) the rights, obligations and
immunities of the Trustee hereunder, and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Issuer, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities to receive amounts in
respect of principal of and interest on the Securities held by them shall not be
delayed longer than required by then-applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed. The Issuer agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any, services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
SECTION 9.2 Issuer's Option to Effect Defeasance or Covenant Defeasance. In
addition to discharge of the Indenture pursuant to Section 9.1, with respect to
any series of Securities where the exact amount of principal and interest due on
which can be determined at the time of making the deposit referred to in Section
9.5(a), the Issuer may at its option by resolution of its Board of Directors
elect at any time either (a) to effect a defeasance (as defined in Section 9.3)
of the Securities of such series under Section 9.3 or (b) to effect a covenant
defeasance (as defined in Section 9.4) of the Securities of such series under
Section 9.4, in each case upon compliance with the applicable conditions set
forth below in this Article Nine.
SECTION 9.3 Defeasance and Discharge. Upon the Issuer's exercise of the
option set forth in clause (a) of Section 9.2 with respect to the Securities of
a series, the Issuer and each Guarantor shall be deemed to have been discharged
from its obligations with respect to the Securities of such series on and after
the date the conditions precedent set forth in Section 9.5 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer shall be deemed to have paid and discharged the entire Indebtedness
represented by the Securities of such series and the Issuer and each Guarantor
shall be deemed to have satisfied all their respective other obligations under
the Securities of such series and under this Indenture relating to the
Securities of such series (and the Trustee, at the expense of the Issuer, shall
execute proper instruments acknowledging the same), except for, (i) rights of
registration of transfer and exchange of Securities of such series, and the
Issuer's right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of Holders to
receive payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration), and remaining rights of
the Holders to receive mandatory sinking fund payments, if any, in each case
solely from the trust funds described in Section 9.5(a); and (iv) the rights,
obligations and immunities of the Trustee hereunder. Subject to compliance with
this Article Nine, the Issuer may exercise its option under this Section 9.3
notwithstanding
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the prior exercise of its option under Section 9.4 with respect to the
Securities of such series.
SECTION 9.4 Covenant Defeasance. Upon the Issuer's exercise of the option
set forth in clause (b) of Section 9.2 with respect to the Securities of a
series, the Issuer and each Guarantor shall be released from their respective
obligations under Sections 3.9, 3.10, 3.11 and 8.1 with respect to the
Securities of such series on and after the date the conditions precedent set
forth in Section 9.5 are satisfied (hereinafter, "covenant defeasance"). For
this purpose, such covenant defeasance means that, with respect to the
Securities of such series, the Issuer and each Guarantor may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section 4.1,
but the remainder of this Indenture and such Securities shall be unaffected
thereby.
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance. The following
shall be the conditions precedent to the application of either Section 9.3 or
Section 9.4 to the Securities of a series:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds
in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the holders of the Securities of such series (i) money in an
amount, or (ii) direct obligations of the United States of America, backed
by its full faith and credit, which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment in
respect of the Securities of such series, money in an amount, or (iii) a
combination thereof, sufficient (without consideration of any reinvestment
of such money, principal or interest), in the opinion of a nationally
recognized firm of independent public accountants or a nationally
recognized investment banking firm expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (A) the principal of and
interest on all Securities of such series on each date such principal or
interest is due and payable and (B) any mandatory sinking fund payments on
the dates on which such payments are due and payable in accordance with the
terms of this Indenture and the Securities of such series. Before such a
deposit the Issuer may make arrangements satisfactory to the Trustee for
the redemption of the Securities of such series at a future date or dates
in accordance with Article Eleven, if applicable to the Securities of such
series, which shall be given effect in applying the foregoing.
(b) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (i) on the date of such
deposit or (ii) insofar as Subsections 4.1(g) and 4.1(h) are concerned, at
any time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the date following the expiration of the
longest preference period applicable to the Issuer in respect of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(c) Such defeasance or covenant defeasance will not (i) cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer or any Guarantor or (ii)
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result in the trust arising from such deposit to constitute, unless it is
qualified as, a regulated investment company under the Investment Company
Act of 1940.
(d) Such defeasance or covenant defeasance will not result in a breach
or violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Issuer or any Guarantor is a party or
by which it is bound.
(e) If the Securities of such series are then listed on any national
securities exchange registered under the Securities Exchange Act of 1934,
the Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that the exercise of the option under Section 9.3 or 9.4, as the
case may be, will not cause such Securities to be delisted.
(f) In the case of an election under Section 9.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from the United States Internal Revenue Service (the
"IRS") a private letter ruling, (ii) there has been published by the IRS a
general revenue ruling, or (iii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in each case to the
effect that, and based thereon such opinion shall confirm that, the Holders
of the Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(g) in the case of an election under Section 9.4, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
holders of the Securities of such series will not recognize income, gain or
loss for United States Federal income tax purposes as a result of such
covenant defeasance and will be subject to United States Federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(h) in the case of an election under either Section 9.3 or Section
9.4, the Issuer shall have delivered to the Trustee an Opinion of Counsel
of Luxembourg counsel to the effect that (i) payments from the defeasance
trust will be free and exempt from any and all withholding and other taxes
imposed or levied by or on behalf of Luxembourg or any political
subdivision thereof having the power to tax, and (ii) Holders of the
Securities of such series will not recognize any income, gain or loss for
Luxembourg income tax and other tax purposes as a result of such deposit
and defeasance or covenant defeasance, as applicable, and will be subject
to Luxembourg income tax and other tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit
and defeasance or covenant defeasance, as applicable, had not occurred.
(i) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Issuer in connection therewith pursuant to Section 2.4.
(j) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 9.3
or the covenant defeasance under Section 9.4 (as the case may be) have been
complied with.
SECTION 9.6 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 9.8, all moneys deposited with the Trustee
pursuant to Section 9.1
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or 9.5 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Issuer acting as its own paying
agent), to the Holders of the particular Securities of such series for the
payment or redemption of which such moneys have been deposited with the Trustee,
of all sums due and to become due thereon for principal and interest; but such
money need not be segregated from other funds except to the extent required by
law.
SECTION 9.7 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 9.8 Return of Moneys Held by Trustee and Paying Agent Unclaimed for
Two Years. Any moneys deposited with or paid to the Trustee or any paying agent
for the payment of the principal of or interest on any Security of any series
and not applied but remaining unclaimed for two years after the date upon which
such principal or interest shall have become due and payable, shall, upon the
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent, and
the Holder of the Security of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease.
SECTION 9.9 Indemnity for Direct Obligations of the United States. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the money or the direct obligations of the United
States of America deposited pursuant to Section 9.1 or 9.5 or the principal or
interest received in respect of such obligations.
SECTION 9.10 Reinstatement. If the Trustee or the paying agent is unable to
apply any money or direct obligations of the United States of America in
accordance with Section 9.1 or 9.5 by reason of any legal proceedings or order
or judgment or any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer's and any Guarantor's
obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article Nine until such time as the Trustee or paying agent is permitted to
apply all such money in accordance with this Article Nine; provided that, if the
Issuer makes any payment of principal of or interest on any such Security
following the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the holders of such Securities to receive such payment from the
money or direct obligations of the United States of America held by the Trustee
or the paying agent.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Shareholders, Officers and Directors of Issuer
and Guarantors Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future shareholder,
officer or director, as such, of the Issuer, any Guarantor or of any successor,
either directly or through the Issuer, such Guarantor or any successor, under
any rule
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of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the holders thereof and as part of the consideration for, and as a
condition of, the issue of the Securities.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any person, firm or corporation,
other than the parties hereto and their successors and the Holders of the
Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto and their successors
and of the Holders of the Securities.
SECTION 10.3 Successors and Assigns of Issuer and Guarantors Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer or any Guarantor shall bind
its successors and assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Guarantors, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities if to or on the Issuer, Boulevard Royal, 26, Sixth Floor, L-2449
Luxembourg, Attention: the Managing Directors; if to or on Tyco, The Gibbons
Building, 10 Queen Street, Suite 301, Hamilton HM11, Bermuda; 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 One Tyco Park, Exeter, New Hampshire 03833, Attention: Treasurer,
or other such address as may be set forth by notice to the Trustee and the
Holders as provided in this Section 10.4. Any notice, direction, request or
demand by the Issuer or any Guarantor or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made and received at the Corporate Trust office.
Where this Indenture provides for notice to Holders, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer, any Guarantor
and the Holders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
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SECTION 10.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate (other than those provided for in Section 3.5 and Section
11.5) or opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the Person making such certificate
or opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with and (d) a
statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays. If the date
of maturity of interest on or principal of the Securities of any series or the
date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and affect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
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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 The City of New York, State of New York, United States 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, 1633 Broadway, New York, New York
10019, U.S.A. (and any successor entity) as its authorized agent to receive and
forward on its behalf service of any and all process which may be served in any
such suit, action or proceeding in any such court and agrees that service of
process upon CT Corporation shall be deemed in every respect effective service
of process upon the Company in any such suit, action or proceeding and shall be
taken and held to be valid personal service upon the Issuer or Tyco, as the case
may be. Said designation and appointment shall be irrevocable. Nothing in this
Section 10.9 shall affect the right of the Holders to serve process in any
manner permitted by law or limit the right of the Holders to bring proceedings
against the Issuer or Tyco in the courts of any jurisdiction or jurisdictions.
Each of the Issuer and Tyco further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of CT Corporation in
full force and effect so long as the Securities are outstanding. Each of the
Issuer and Tyco hereby irrevocably and unconditionally authorizes and directs CT
Corporation to accept such service on its behalf. If for any reason CT
Corporation ceases to be available to act as such, each of the Issuer and Tyco
agrees to designate a new agent in New York City.
To the extent that the Issuer or Tyco has or hereafter may acquire any
immunity from jurisdiction of any court (including, without limitation, any
court in the United States, the State of New York, Luxembourg, Bermuda or any
political subdivisions thereof) or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property or assets, this
Indenture, the Securities, the Guarantees or any other documents or actions to
enforce judgments in respect of any thereof, the each of the Issuer and Tyco
hereby irrevocably waives such immunity, and any defense based on such immunity,
in respect of its obligations under the above-referenced documents and the
transactions contemplated thereby, to the extent permitted by law.
SECTION 10.10 Judgement Currency. If pursuant to a judgment or order being
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made or registered against the Issuer or Tyco, any payment under or in
connection with this Indenture, any Securities or any Guarantees to a Holder is
made or satisfied in a currency (the "Judgment Currency") other than in United
States dollars then, to the extent that the payment (when converted into United
States dollars at the rate of exchange on the date of payment or, if it is not
practicable for such Holder to purchase United States dollars with the Judgment
Currency on the date of payment, at the rate of exchange as soon thereafter as
it is practicable for it to do so) actually received by such Holder falls short
of the amount due under the terms of this Indenture, any Securities or any
Guarantees, each of the Issuer and Tyco shall, to the extent permitted by law,
as a separate and independent obligation, indemnify and hold harmless such
Holder against the amount of such short fall and such indemnity shall continue
in full force and effect notwithstanding any such judgment or order as
aforesaid. For the purpose of this Section, "rate of exchange" means the rate at
which the Holder is able on the relevant date to purchase United States dollars
with the Judgment Currency and shall take into account any premium and other
costs of exchange.
SECTION 10.11 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 10.12 Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The provisions of this Article
shall be applicable to any redemption pursuant to Section 12.1 and to the
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.4 for Securities of such series.
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal
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amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit
with the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all the outstanding Securities of a series are to be
redeemed, the Issuer will deliver to the Trustee at least 10 days before the
notice of redemption referred to in the first paragraph of this Section 11.2 is
first mailed to Holders, but no less than 45 days prior to the date fixed for
redemption, an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed in whole or in part. Securities may be redeemed in
part in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
issuer in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities of any series shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
SECTION 11.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.5 and 9.8, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.5 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
the Security.
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Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
such series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by a managing director or by an authorized officer of
the Issuer and delivered to the Trustee at least 40 days prior to the last date
on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b)
an entity specifically identified in such written statement directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any series
is herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities of any
series is herein referred to as an "optional sinking fund payment." The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.8, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the forty-fifth day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee a written statement
(which need not contain the statements required by Section 10.5) signed by a
managing director or by an authorized officer of the Issuer (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of cash
and the portion to be satisfied by credit of Securities of such series, (b)
stating that none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived or
cured) and are continuing and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.11 to the Trustee with
such written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its receipt by
the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
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such forty-fifth day, to deliver such written statement and Securities specified
in this paragraph, if any, shall not constitute a default but shall constitute,
on and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Issuer shall so request) with respect to the Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of securities of such series at the
sinking fund redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 or less and the Issuer makes no
such request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 11.2, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities
of any series which are (a) owned by the Issuer or an entity known by the
Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Security
register, and not known to the Trustee to have been pledged or hypothecated by
the Issuer or any such entity or (b) identified in an Officers' Certificate at
least 60 days prior to the sinking fund payment date as being beneficially owned
by, and not pledged or hypothecated by, the Issuer or an entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer shall be excluded from Securities of such series
eligible for selection for redemption. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be
given in substantially the manner provided in Section 11.2 (and with the effect
provided in Section 11.3) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking
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fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Four and held for the payment of all
such Securities. In case such Event of Default shall have been waived as
provided in Section 4.9 or the default cured on or before the forty-fifth day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE TWELVE
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
SECTION 12.1 Redemption Upon Changes in Withholding Taxes. The Securities
of any series may be redeemed, as a whole but not in part, at the election of
the Issuer, upon not less than 30 nor more than 60 days notice (which notice
shall be irrevocable), at a redemption price equal to 100% of the principal
amount thereof, together with accrued interest, if any, to the redemption date
and Additional Amounts (as defined in Section 12.2), if any, if as a result of
any amendment to, or change in, the laws or regulations of Luxembourg or any
political subdivision or taxing authority thereof or therein having power to tax
(a "Taxing Authority"), or any change in the application or official
interpretation of such laws or regulations which amendment or change becomes
effective after the date the Securities of such series are issued, the Issuer
has become or will become obligated to pay Additional Amounts, on the next date
on which any amount would be payable with respect to the Securities of such
series, and such obligation cannot be avoided by the use of reasonable measures
available to the Issuer; provided, however, that (a) no such notice of
redemption may be given earlier than 60 days prior to the earliest date on which
the Issuer would be obligated to pay such Additional Amounts, and (b) at the
time such notice of redemption is given, such obligation to pay such Additional
Amounts remains in effect. Prior to the giving of any notice of redemption
described in this paragraph, the Issuer shall deliver to the Trustee (i) an
Officer's Certificate of the Issuer stating that the obligation to pay
Additional Amounts cannot be avoided by the Issuer taking reasonable measures
available to it and (ii) a written opinion of independent legal counsel to the
Issuer of recognized standing to the effect that the Issuer has or will become
obligated to pay Additional Amounts as a result of a change, amendment, official
interpretation or application described above and that the Issuer cannot avoid
the payment of such Additional Amounts by taking reasonable measures available
to it.
SECTION 12.2 Payment of Additional Amounts. All payments made by the
Issuer, Tyco and any other Guarantor under or with respect to the Securities and
the Guarantees will be made free and clear of and without withholding or
deduction for or on account of any present or future taxes, duties, levies,
imposts, assessments or governmental charges of whatever nature imposed or
levied by or on behalf of any Taxing Authority ("Taxes"), unless the Issuer,
Tyco or such Guarantor, as the case may be, is required to withhold or deduct
Taxes by law or by the interpretation or administration thereof. In the event
that the Issuer, Tyco or such Guarantor is required to so withhold or deduct any
amount for or on account of any Taxes from any payment made under or with
respect to the Securities or the Guarantees, as the case may be, the Issuer,
Tyco or such Guarantor, as the case may be, will pay such additional amounts
("Additional Amounts") as may be necessary so that the net amount received by
each Holder of Securities (including Additional Amounts) after such withholding
or deduction will equal the amount that such Holder would have received if such
Taxes had not been required to be withheld or deducted; provided that no
Additional Amounts will be payable with respect to a payment made to a Holder of
Securities to the extent:
(a) that any such Taxes would not have been so imposed but for the
existence of any present or former connection between such Holder and the
Taxing Authority imposing
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such Taxes (other than the mere receipt of such payment, acquisition,
ownership or disposition of such Securities or the exercise or enforcement
of rights under such Securities, the Guarantees or this Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or personal
property Tax imposed with respect to such Securities, except as otherwise
provided herein;
(c) that any such Taxes would not have been so imposed but for the
presentation of such Securities (where presentation is required) for
payment on a date more than 30 days after the date on which such payment
became due and payable or the date on which payment thereof is duly
provided for, whichever is later, except to the extent that the beneficiary
or Holder thereof would have been entitled to Additional Amounts had the
Securities been presented for payment on any date during such 30-day
period; or
(d) that such Holder would not be liable or subject to such
withholding or deduction of Taxes but for the failure to make a valid
declaration of non-residence or other similar claim for exemption, if (x)
the making of such declaration or claim is required or imposed by statute,
treaty, regulation, ruling or administrative practice of the relevant
Taxing Authority as a precondition to an exemption from, or reduction in,
the relevant Taxes, and (y) at least 60 days prior to the first payment
date with respect to which the Issuer, Tyco or such Guarantor shall apply
this clause (d), the Issuer, Tyco or such Guarantor shall have notified all
Holders of Securities in writing that they shall be required to provide
such declaration or claim.
The Issuer, Tyco or such Guarantor, as applicable, will also (i) make such
withholding or deduction of Taxes and (ii) remit the full amount of Taxes so
deducted or withheld to the relevant Taxing Authority in accordance with all
applicable laws. The Issuer, Tyco or such Guarantor, as applicable, will use
their reasonable best efforts to obtain certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld from each Taxing
Authority imposing such Taxes. The Issuer, Tyco or such Guarantor, as the case
may be, will, upon request, make available to the Holders of the Securities,
within 60 days after the date the payment of any Taxes so deducted or withheld
is due pursuant to applicable law, certified copies of tax receipts evidencing
such payment by the Issuer, Tyco or such Guarantor or if, notwithstanding the
Issuer's, Tyco's or such Guarantor's efforts to obtain such receipts, the same
are not obtainable, other evidence of such payments by the Issuer, Tyco or such
Guarantor.
At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Issuer, Tyco or such
Guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Issuer, Tyco or such Guarantor will deliver to the Trustee an
Officers' Certificate stating the fact that such Additional Amounts will be
payable, the amounts so payable and will set forth such other information as is
necessary to enable such Trustee to pay such Additional Amounts to Holders of
Securities on the payment date.
The foregoing provisions shall survive any termination of the discharge of
this Indenture and shall apply mutatis mutandis to any jurisdiction in which any
successor Person to the Issuer, Tyco or such Guarantor, as the case may be, is
organized or is engaged in business for tax purposes or any political
subdivisions or taxing authority or agency thereof or therein.
In addition, the Issuer will pay any stamp, issue, registration,
documentary or other similar taxes and duties, including interest, penalties and
Additional Amounts with respect thereto, payable in Luxembourg or the United
States or any political subdivision or taxing authority of or in the foregoing
in respect of the creation, issue, offering, enforcement, redemption or
retirement of the
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Securities.
Whenever in this Indenture or the Securities there is mentioned, in any
context, the payment of principal, redemption price, interest or any other
amount payable under or with respect to any Security, such mention shall be
deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof.
ARTICLE THIRTEEN
GUARANTEES
SECTION 13.1 Guarantee. Except as otherwise provided herein, Tyco and each
Person that becomes a Guarantor after the date of this Indenture (collectively
with Tyco, the "Guarantors") hereby, jointly and severally, fully and
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee, and to the Trustee on behalf of such Holder, the due
and punctual payment of the principal of and interest on such Security when and
as the same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption or otherwise, in accordance with the terms of
such Security and of this Indenture. In case of the failure of the Issuer
punctually to make any such payment, each Guarantor hereby, jointly and
severally, agrees to cause such payment to be made punctually when and as the
same shall become due and payable, whether at the stated maturity or by
acceleration, call for redemption or otherwise, and as if such payment were made
by the Issuer.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be absolute and unconditional, irrespective of, and
shall be unaffected by, the validity, regularity or enforceability of such
Security or this Indenture, the absence of any action to enforce the same or any
release, amendment, waiver or indulgence granted to the Issuer or any guarantor
or any consent to departure from any requirement of any other guarantee of all
or any of the Securities or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each of the Guarantors hereby waives the benefits of diligence, presentment,
demand for payment, any requirement that the Trustee or any of the Holders
protect, secure, perfect or insure any security interest in or other lien on any
property subject thereto or exhaust any right or take any action against the
Issuer or any other Person or any collateral, filing of claims with a court in
the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to such
Security or the Indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged in respect of such Security
except by complete performance of the obligations contained in such Security and
in such Guarantee. Each Guarantor agrees that if, after the occurrence and
during the continuance of an Event of Default, the Trustee or any of the Holders
are prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, such Guarantor agrees to pay to the Trustee for the account of
the Holders, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
Each Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Guarantee is endorsed against the Issuer in respect of
any amounts paid by such Guarantor on account of such Security pursuant to the
provisions of its Guarantee or this Indenture; provided, however, that no
Guarantor shall be entitled to enforce or to receive any payment arising out of,
or based upon, such right of subrogation until the principal of and interest
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on all Securities issued hereunder shall have been paid in full.
Each Guarantor that makes or is required to make any payment in respect of
its Guarantee shall be entitled to seek contribution from the other Guarantors
to the extent permitted by applicable law; provided, however, that no Guarantor
shall be entitled to enforce or receive any payments arising out of, or based
upon, such right of contribution until the principal of and interest on all
Securities issued hereunder shall have been paid in full.
Each Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Issuer for liquidation
or reorganization, should the Issuer become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any part of the Issuer's assets, and shall, to the fullest extent permitted by
law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Securities, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
Holder of the Securities, whether as a "voidable preference," "fraudulent
transfer," or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
Any term or provision of any Guarantee to the contrary notwithstanding, the
aggregate amount of the obligations guaranteed hereunder shall be reduced to the
extent necessary to prevent such Guarantee from violating or becoming voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
SECTION 13.2 Execution and Delivery of Guarantees. The Guarantees to be
endorsed on the Securities shall include the terms of the Guarantee set forth in
Section 13.1 and any other terms that may be set forth in the form established
pursuant to Section 2.2. Each of the Guarantors hereby agrees to execute its
Guarantee, in a form established pursuant to Section 2.2, to be endorsed on each
Security authenticated and delivered by the Trustee.
The Guarantee shall be executed on behalf of each respective Guarantor by
any one of such Guarantor's chairman of the Board of Directors, president, vice
presidents or other person duly authorized by the Board of Directors of such
Guarantor, attested by its secretary or assistant secretary. The signature of
any or all of these persons on the Guarantee may be manual or facsimile.
A Guarantee bearing the manual or facsimile signature of individuals who
were at any time the proper officers of a Guarantor shall bind such Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of the Security on which such
Guarantee is endorsed or did not hold such offices at the date of such
Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantors and shall bind each Guarantor
notwithstanding the fact that Guarantee does not bear the signature of such
Guarantor. Each of the Guarantors hereby jointly and severally agrees that its
Guarantee set forth in Section 13.1 and in the form of Guarantee established
pursuant to Section 2.2 shall remain in full force and effect notwithstanding
any failure to endorse a Guarantee on any Security.
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SECTION 13.3 Release of Guarantees. Notwithstanding anything in this
Article Thirteen to the contrary, concurrently with the payment in full of the
principal of, premium, if any, and interest on the Securities, the Guarantors
shall be released from and relieved of their obligations under this Article
Thirteen. Upon the delivery by the Issuer to the Trustee of an Officers'
Certificate and, if requested by the Trustee, an Opinion of Counsel to the
effect that the transaction giving rise to the release of this Guarantee was
made by the Issuer in accordance with the provisions of this Indenture and the
Securities, the Trustee shall execute any documents reasonably required in order
to evidence the release of the Guarantors from their obligations under this
Guarantee. If any of the obligations to pay the principal of, premium, if any,
and interest on the Securities are revived and reinstated after the termination
of this Guarantee, then all of the obligations of the Guarantors under this
Guarantee shall be revived and reinstated as if this Guarantee had not been
terminated until such time as the principal of, premium, if any, and interest on
the Securities are paid in full, and each Guarantor shall enter into an
amendment to this Guarantee, reasonably satisfactory to the Trustee, evidencing
such revival and reinstatement.
This Guarantee shall terminate with respect to the applicable Guarantor and
shall be automatically and unconditionally released and discharged as provided
in Section 3.11(b).
SECTION 13.4 Additional Guarantors. A Subsidiary shall become a Guarantor
with respect to the Securities, as contemplated by Section 3.11(a), by executing
and delivering to the Trustee (a) a supplemental indenture, in form and
substance satisfactory to the Trustee, which subjects such Person to the
provisions (including the representations and warranties) of this Indenture as a
Guarantor and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and such
supplemental indenture and such Person's obligations under its Guarantee and
this Indenture constitute the legal, valid, binding and enforceable obligations
of such Person (subject to such customary exceptions concerning creditors'
rights and equitable principles as may be acceptable to the Trustee in its
discretion).
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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 ________ __, 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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EXHIBIT 5.1
[LETTERHEAD OF APPLEBY, SPURLING & KEMPE]
April 28, 1998
Tyco International Ltd.
The Gibbons Building
10 Queen Street
Suite 301
Hamilton HM11
Bermuda
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as Bermuda counsel to Tyco International Ltd., a Bermuda
company ("Tyco"), in connection with the filing by Tyco and Tyco International
Group S.A., a Luxembourg company (the "Issuer"), with the United States
Securities and Exchange Commission of a Registration Statement on Form S-3, as
amended (the "Registration Statement"), with respect to the Issuer's unsecured
debt securities (the "Debt Securities") and the guarantees (the "Guarantees") of
the Debt Securities by Tyco, to be issued from time to time pursuant to Rule 415
under the United States Securities Act of 1933, as amended (the "Securities
Act"), for an aggregate initial offering price not to exceed U.S.$3,750,000,000.
The Debt Securities are to be in one or more series pursuant to an Indenture
among the Issuer, Tyco (as Guarantor) and the trustee thereunder.
This opinion is based upon and confined to the laws of Bermuda presently in
force as currently applied by the Courts of Bermuda. We have made no
investigation of, nor do we express any opinion as to, the laws of any
jurisdiction other than Bermuda.
In order to render this opinion, we have been supplied with and have
reviewed and relied upon the following documents:
(i) a Certificate of Compliance issued by the Registrar of Companies in
Bermuda on April , 1998 in respect of Tyco;
(ii) the Certificate of Incorporation, Memorandum of Association and
Bye-laws of Tyco;
(iii) a copy of resolutions adopted by the Shareholders at a Special General
Meeting of Tyco held on July 2, 1997;
(iv) a copy of the Registration Statement, excluding the documents
incorporated by reference therein;
(v) copies of the pages of the Registration Statement as initially filed
signed by all of the Directors of Tyco (the "Signature Pages"); and
(vi) a copy of the form of Indenture filed as Exhibit 4.1 to the
Registration Statement (the "Indenture") pursuant to which Debt
Securities may be issued.
We have also relied upon our searches of documents of public record in
relation to Tyco maintained by the Registrar of Companies in Bermuda made on
April 28, 1998 and of the Causes Book maintained by the Registrar of the Supreme
Court made on the same date (the "Searches"); and such other certificates,
agreements, instruments and documents as we have deemed necessary or advisable
for the purposes of this opinion. We have relied, as to factual matters only,
upon such certificates and the representations and warranties made in such
agreements, instruments and other documents.
We have assumed:
(a) that there is no provision of the law, regulation or public policy of
any jurisdiction, other than Bermuda, which might have a material effect
on any of the opinions herein expressed;
<PAGE>
(b) that all representations and statements of facts appearing in the
Registration Statement and the Board Resolutions are true and complete in
all material respects;
(c) the genuineness of all signatures on the documents which we have
examined;
(d) the conformity to original documents of all documents produced to us as
copies and the authenticity of all original documents which or copies of
which have been submitted to us;
(e) that the information disclosed by the Searches has not been materially
altered and that the documents examined in connection with the Searches
did not fail to disclose any material information which had been
delivered for filing or registration, but was not disclosed or did not
appear on the public file at the time of the Searches; and
(f) that the Signature Pages evidence the approval of all of the Directors
of Tyco of all matters relating to Tyco set out in the Registration
Statement including, without limiting the generality of the foregoing,
the approval of the issue, on the terms set out in the Registration
Statement and the Prospectus therein, of the Guarantees.
Unless otherwise defined herein, terms defined in the Registration Statement
and the Prospectus, have the same meanings when used in this opinion.
Based upon and subject to the foregoing, and subject to the reservations
mentioned below, we are of the opinion that as at the date hereof:
1. Tyco is a limited liability company validly organized and existing and
in good standing under the laws of Bermuda and has all requisite
corporate power and authority to issue the Guarantees.
2. When a resolution of the Board of Directors of Tyco has been duly
adopted to approve the creation of and the issue of the Guarantees upon
the terms of the Indenture, or of any supplemental indenture conforming
thereto and to applicable law, and to authorize the execution and
delivery thereof, all necessary action required to be taken by Tyco
pursuant to Bermuda law will have been taken by or on behalf of Tyco for
the issue by Tyco of the Guarantees.
3. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency in Bermuda is necessary or required to be made or
obtained by Tyco in connection with the issue by Tyco of the Guarantees.
4. There are no taxes, duties, or other charges payable to or chargeable by
the Government of Bermuda, or any authority or agency thereof, in respect
of the issue by Tyco of the Guarantees.
Our reservations are as follows:
(1) We are admitted to practice law in the Islands of Bermuda and we express
no opinion as to any law other than Bermuda law, and none of the opinions
expressed herein relates to compliance with or matters governed by the
laws of any jurisdiction except Bermuda.
(2) Any reference in this opinion to Tyco being in "good standing" shall
mean for the purposes of this opinion that it has been issued with a
Certificate of Compliance by the Registrar of Companies as at the date
hereinbefore mentioned.
We hereby consent to the inclusion of the opinion as an exhibit to the
Registration Statement. We also consent to the reference to our firm under the
caption "Legal Matters" in the Prospectus included as part of the Registration
Statement.
This opinion is to be governed by and construed in accordance with the laws
of Bermuda and shall not give rise to legal proceedings in any jurisdiction
other than Bermuda.
Your faithfully,
/s/ APPLEBY, SPURLING & KEMPE
<PAGE>
EXHIBIT 5.2
On Zeyen Beghin Feider Loeff Claeys Verbeke Letterhead
To:Tyco International Group S.A.
Boulevard Royal, 26
Sixth Floor
L-2449 Luxembourg
Luxembourg, April 28, 1998
Dear Sirs,
TYCO INTERNATIONAL GROUP S.A.
(INCORPORATED AS A SOCIETE ANONYME WITH LIMITED LIABILITY UNDER THE LAWS OF THE
GRAND-DUCHY OF LUXEMBOURG)
ISSUE OF U.S.$3,750,000,000 DEBT SECURITIES
UNCONDITIONALLY GUARANTEED BY
TYCO INTERNATIONAL LTD.
We have acted as legal advisers in the Grand-Duchy of Luxembourg
("Luxembourg") to Tyco International Group S.A. (the "Issuer"), a limited
liability company (SOCIETE ANONYME) now organized under the laws of Luxembourg
but formerly a company named "Velum Limited" organized under the laws of
Gibraltar which transferred its registered and principal office to Luxembourg on
March 30, 1998. We are giving this opinion in connection with the filing by Tyco
International Ltd., a Bermuda company ("Tyco") and the Issuer, with the United
States Securities and Exchange Commission of a Registration Statement on Form
S-3, as amended (the "Registration Statement"), with respect to the Issuer's
unsecured debt securities (the "Debt Securities") and the guarantees (the
"Guarantees") of the Debt Securities by Tyco, to be issued from time to time
pursuant to Rule 415 under the United States Securities Act of 1933, as amended
(the "Securities Act"), for an aggregate initial offering price not to exceed
U.S. $3,750,000,000. The Debt Securities are to be in one or more series
pursuant to an Indenture among the Issuer, Tyco (as Guarantor) and the trustee
thereunder.
We have examined copies of the following documents:
(a) the prospectus dated April 23, 1998 (the "Prospectus") in relation to
the Debt Securities which incorporates the definitive form of Security;
(b) the minutes of the extraordinary general meeting of shareholders of the
Company held in notarial form before the notary Jean-Joseph Wagner on
March 30, 1998 (the "Notarial Deed");
(c) the restated articles of incorporation of the Issuer (the "Articles of
Association") in a version dated March 30, 1998 not yet published in the
official Gazette (Memorial C);
(d) an excerpt from the trade and company register at the district court in
Luxembourg as available in the Issuer's file;
(e) the board of directors' resolution of the Issuer dated April ( ), 1998
resolving INTER ALIA the issue of the Debt Securities and the entry into
any and all contractual documents in connection therewith (the
"Agreements"); and
(f) all other relevant corporate documents of the Issuer and such further
documents and matters of law as we have considered necessary or
appropriate for the rendering of this option.
For the purposes of this opinion, we have assumed with your consent, and we
have not verified independently, the following:
<PAGE>
i. the genuineness of all the signatures and documents submitted to us as
originals the conformity to the originals thereof of the Prospectus and
other documents in respect of the Debt Securities submitted to us as
copies or specimens;
ii. the due authorization, execution and delivery of the Prospectus and
other documents in respect of the Debt Securities by all the parties
thereto (other than the Issuer), as well as the power, authority and
legal right of all the parties thereto (other than the Issuer) to enter
into, execute, deliver and perform their respective obligations
thereunder, and compliance with all applicable laws and regulations,
other than Luxembourg law;
iii. that all authorizations and consents of any country other than
Luxembourg which may be required in connection with the execution,
delivery and performance of the Agreements and other documents in respect
of the issue of the Debt Securities have been or will be obtained;
iv. the validity and enforceability of the Prospectus and other documents
in respect of the Debt Securities under their governing laws (other than
the laws of Luxembourg);
v. that the Articles of Association have not been amended since March 30,
1998;
vi. that the Debt Securities will not be the subject of a public offering
in Luxembourg, unless the relevant requirements of Luxembourg law
concerning public offerings of securities have been fulfilled; and
vii. that there are no provisions of the laws of any jurisdiction outside
Luxembourg which would have any negative impact on the opinions we
express in this legal opinion.
Subject to the assumptions made above and the qualifications set forth
below, we are of the opinion as at the date hereof that:
1. The Issuer is a limited liability company validly organized and existing
under the laws of Luxembourg and has all requisite corporate power and
authority to issue the Debt Securities.
2. All necessary action required to be taken by the Issuer pursuant to the
laws of Luxembourg has been taken by or on behalf of the Issuer and all
the necessary authorizations and approvals of Government authorities in
Luxembourg have been duly obtained for the issue by the Issuer of the
Debt Securities.
3. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency in Luxembourg is necessary or required to be made or
obtained by Tyco or the Issuer in connection with the issue by the Issuer
of the Debt Securities.
4. There are no taxes, duties, or other charges payable to or chargeable by
the Government of Luxembourg, or any authority or agency thereof, in
respect of the issue by the Issuer of the Debt Securities.
The above opinions are subject to the following qualifications:
a) Although this is rarely done in practice, if any or all Agreements in
respect of the Debt Securities were produced in Luxembourg proceedings or
in front of a Luxembourg official authority, the court could order the
registration thereof, in which case an ad valorem tax on the amount
referred to in the Prospectus of the Debt Securities would be payable at
the rate of 0.24 per cent., unless production was made in an
enforceability claim under the provisions of the European Convention on
Jurisdiction and Enforcement of Judgements in Civil and Commercial
Matters signed at Brussels on 27th September, 1968, as amended.
b) The opinion expressed under 1. is subject to the publication in due
course of the articles of association of the Issuer in the Official
Gazaette (Memorial C), the Issuer being however validly formed as a
Luxembourg company upon execution of the Notarial Deed which was passed
on March 30, 1998.
<PAGE>
c) This opinion is limited to matters of Luxembourg law only and we express
no opinion other than with respect to Luxembourg law under the
assumptions and reservations made hereunder.
d) This opinion is as of this date and we undertake no obligation to update
it or advise of changes hereafter occurring. We express no opinion as to
any matters other than those expressly set forth herein, and no opinion
is, or may be, implied or inferred herefrom.
This opinion shall be construed in accordance with Luxembourg law and
Luxembourg legal concepts are expressed in English terms and not in their
original French terms. The concepts concerned may not be identical to the
concepts described by the same English terms as they exist under the laws of
other jurisdictions.
This opinion may, therefore, only be relied upon under the express condition
that any issues of interpretation arising thereunder will be governed by
Luxembourg law and be brought before a Luxembourg court. Nothing in this opinion
should be taken as expressing an opinion in respect of any representations or
warranties, or other information, contained in the Prospectus or any other
document examined in connection with the opinion except as expressly confirmed
herein. This opinion is given to you solely for your benefit. It is not to be
transmitted to any other person nor is it to be relied upon by any other person
or for any other purpose without our previous written consent.
We hereby consent to the inclusion of the opinion as an exhibit to the
Registration Statement. We also consent to the reference to our firm under the
caption "Legal Matters" in the Prospectus included as part of the Registration
Statement.
Yours faithfully,
ZEYEN BEGHIN FEIDER
LOEFF CLAEYS VERBEKE
by: /s/ Marc Feider
------------------------------------------------------------------------
Marc Feider
<PAGE>
EXHIBIT 5.3
[LETTERHEAD OF KRAMER, LEVIN, NAFTALIS & FRANKEL]
April 28, 1998
Tyco International Ltd.
The Gibbons Building
10 Queen Street
Suite 301
Hamilton HM11
Bermuda
Tyco International Group S.A.
Boulevard Royal, 26
6th Floor
L - 2449 Luxembourg
Ladies and Gentlemen:
We have acted as United States securities counsel for Tyco International
Ltd., a Bermuda company ("Tyco"), and Tyco International Group S.A., a
Luxembourg company (the "Issuer"), in connection with the filing by Tyco and the
Issuer with the United States Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-3, as amended (the
"Registration Statement"), with respect to the Issuer's unsecured debt
securities (the "Debt Securities") and the guarantees (the "Guarantees") of the
Debt Securities by Tyco, to be issued from time to time pursuant to Rule 415
under the United States Securities Act of 1933, as amended (the "Securities
Act"), for an aggregate initial offering price not to exceed U.S.$3,750,000,000.
The Debt Securities are to be in one or more series pursuant to an Indenture
among the Issuer, Tyco (as Guarantor) and the trustee thereunder (the
"Trustee").
We have examined (i) the form of Indenture filed as Exhibit 4.1 to the
Registration Statement (the "Indenture"), pursuant to which Debt Securities may
be issued; (ii) the Registration Statement; and (iii) originals, photocopies or
conformed copies of all such records of Tyco, the Issuer and their subsidiaries,
all such agreements and certificates of public officials, and such other
documents as we have deemed relevant and necessary as a basis for the opinion
hereinafter expressed. In addition, we have examined and relied upon the
opinions of Appleby, Spurling & Kempe, Bermuda counsel to Tyco, and Zeyen Beghin
Feider Loeff Claeys Verbeke, Luxembourg counsel to the Issuer, of even date.
In connection with this opinion, we have assumed that (i) the Registration
Statement, and any amendments thereto (including post-effective amendments),
will have become effective; (ii) a Prospectus Supplement will have been prepared
and filed with the Commission describing the Debt Securities offered thereby and
the Guarantees; (iii) all Debt Securities will be issued and sold in compliance
with applicable United States federal and state securities laws and in the
manner stated in the Registration Statement and the appropriate Prospectus
Supplement; (iv) the Indenture and any applicable supplemental indenture will
have been duly authorized, executed and delivered by the Issuer, Tyco and the
Trustee, and any such supplemental indenture will conform to the Indenture and
to applicable law; and (v) a definitive purchase, underwriting or similar
agreement with respect to any Debt Securities offered will have been duly
authorized and validly executed and delivered by the Issuer, Tyco and the other
parties thereto.
Based upon and subject to the foregoing, we are of the opinion that:
With respect to Debt Securities to be issued under the Indenture, when (i)
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended; (ii) the Board of Directors of the Issuer has taken all necessary
corporate action to approve the issuance and terms of such Debt Securities, the
terms of the offering thereof and related matters; and (iii) such Debt
Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Indenture, the applicable supplemental
indenture, and the applicable definitive purchase, underwriting or similar
agreement
<PAGE>
approved by authorization of the Board of Directors of the Issuer then, upon
payment of the consideration therefor provided for therein, such Debt Securities
will be legally issued and will constitute valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, except as
such enforcement is subject to any applicable bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors' rights generally
and general principles of equity.
With respect to the Guarantees, when (i) the Board of Directors of Tyco has
taken all necessary corporate action to approve the creation of and the issuance
and terms of the Guarantees and related matters; and (ii) the Guarantees have
been duly executed, authenticated, issued and delivered by Tyco in accordance
with the Indenture, such Guarantees will be legally issued and will constitute
valid and binding obligations of Tyco, enforceable against Tyco in accordance
with their terms, except as such enforcement is subject to any applicable
bankruptcy, insolvency, reorganization or other law relating to or affecting
creditors' rights generally and general principles of equity.
Joshua M. Berman, a director and Vice President of Tyco, is counsel to our
firm.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the statements made with respect to us under the
caption "Legal Matters" in the Prospectus included as part of the Registration
Statement.
We call your attention to the fact that we are admitted to practice law only
in the State of New York and, in rendering the foregoing opinion, we do not
express an opinion concerning any laws other than the laws of the State of New
York and the federal laws of the United States of America.
Very truly yours,
/s/ Kramer, Levin, Naftalis & Frankel
--------------------------------------
Kramer, Levin, Naftalis & Frankel
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Amendment No. 1 to the
Registration Statement of Tyco International Ltd. ("Tyco") on Form S-3 of our
report dated November 21, 1997, which is included in Tyco's Transition Report on
Form 10-K for the period ended September 30, 1997, and our report dated November
21, 1997, except as to the information presented in Note 25(b) for which the
date is April 21, 1998, which is included in Tyco's Current Report on Form 8-K,
on our audits of the Consolidated Financial Statements and the Consolidated
Financial Statement Schedule of Tyco International Ltd. (formerly named ADT
Limited) as of September 30, 1997 and December 31, 1996 and for the nine months
ended September 30, 1997 and for each of the two years in the period ended
December 31, 1996. We also consent to the reference to our firm under the
caption "Experts."
/s/ COOPERS & LYBRAND
Hamilton, Bermuda
April 28, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Amendment No. 1 to the
Registration Statement of Tyco International Ltd. ("Tyco") on Form S-3 of our
report dated July 10, 1997, which is included in Tyco's Transition Report on
Form 10-K for the period ended September 30, 1997 and in Tyco's Current Report
on Form 8-K, on our audits of the Consolidated Financial Statements and the
Consolidated Financial Statement Schedule of Tyco International Ltd.
(subsequently renamed Tyco International (US) Inc.) as of December 31, 1996 and
for the years ended December 31, 1996 and June 30, 1995 (not presented
separately therein). We also consent to the reference to our firm under the
caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
April 28, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Amendment No. 1 to the Registration Statement of our report
dated January 31, 1997 on our audits of the consolidated financial statements of
Keystone International, Inc. and subsidiaries as of December 31, 1996 and for
each of the two years in the period then ended, included in the Tyco
International Ltd. Transition Report on Form 10-K for the year ended September
30, 1997, and to all references to our Firm included in this Registration
Statement.
/s/ ARTHUR ANDERSEN LLP
April 28, 1998
Houston, Texas
