<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 9, 1998
FILE NOS. 333-50855
AND 333-50855-01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE 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. / /
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
POST-EFFECTIVE AMENDMENT NO. 1
Tyco International Ltd. and Tyco International Group S.A. hereby amend the
Registrants' Registration Statement on Form S-3, File Nos. 333-50855 and
333-50855-01, for the purpose of filing Exhibits 1.1, 1.2, 4.1, 4.2, 4.3, 4.4,
4.5 and 12.
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<C> <C> <S>
1.1 -- Underwriting Agreement, dated June 4, 1998, among Tyco International Group S.A.
(the "Company"), Tyco International Ltd. ("Tyco") and the Representatives of the
Underwriters named therein, relating to the 6 1/8% Notes due 2001, the 6 3/8%
Notes due 2005 and the 7% Notes due 2028 of the Company
1.2 -- Underwriting Agreement, dated June 4, 1998, among the Company, Tyco and the
Representatives of the Underwriters named therein, relating to the 6 1/4% Dealer
remarketable securities(sm) (Drs.-SM-) due 2013 of the Company
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, dated as of June 9, 1998, among the Company, Tyco and The Bank
of New York, as trustee
4.2 -- Form of Supplemental Indenture No. 1, dated as of June 9, 1998, among the
Company, Tyco and The Bank of New York, as Trustee, relating to the 6 1/8% Notes
due 2001 of the Company (including the form of Notes)
4.3 -- Form of Supplemental Indenture No. 2, dated as of June 9, 1998, among the
Company, Tyco and The Bank of New York, as Trustee, relating to the 6 3/8% Notes
due 2005 of the Company (including the form of Notes)
4.4 -- Form of Supplemental Indenture No. 3, dated as of June 9, 1998, among the
Company, Tyco and The Bank of New York, as Trustee, relating to the 7% Notes due
2028 of the Company (including the form of Notes)
4.5 Form of Supplemental Indenture No. 4, dated as of June 9, 1998, among the
Company, Tyco and The Bank of New York, as Trustee, relating to the 6 1/4% Dealer
remarketable securities(sm) (Drs.-SM-) due 2013 of the Company (including the
form of Drs.)
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>
- ------------------------
** Previously filed.
II-1
<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 Post-Effective
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 9th day of June, 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
Post-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons on June 9, 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 Post-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Luxembourg, on the 9th day of June,
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
Post-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons on June 9, 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 --Underwriting Agreement, dated June 4, 1998, among Tyco International Group S.A. (the
"Company"), Tyco International Ltd. ("Tyco") and the Representatives of the Underwriters
named therein, relating to the 6 1/8% Notes due 2001, the 6 3/8% Notes due 2005 and the 7%
Notes due 2028 of the Company
1.2 --Underwriting Agreement, dated June 4, 1998, among the Company, Tyco and the
Representatives of the Underwriters named therein, relating to the 6 1/4% Dealer
remarketable securities(sm) (Drs.-SM-) due 2013 of the Company
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, dated as of June 9, 1998, among the Company, Tyco and The Bank of New
York, as trustee
4.2 --Form of Supplemental Indenture No. 1, dated as of June 9, 1998, among the Company, Tyco
and The Bank of New York, as Trustee, relating to the 6 1/8% Notes due 2001 of the Company
(including the form of Notes)
4.3 --Form of Supplemental Indenture No. 2, dated as of June 9, 1998, among the Company, Tyco
and The Bank of New York, as Trustee, relating to the 6 3/8% Notes due 2005 of the Company
(including the form of Notes)
4.4 --Form of Supplemental Indenture No. 3, dated as of June 9, 1998, among the Company, Tyco
and The Bank of New York, as Trustee, relating to the 7% Notes due 2028 of the Company
(including the form of Notes)
4.5 --Form of Supplemental Indenture No. 4, dated as of June 9, 1998, among the Company, Tyco
and The Bank of New York, as Trustee, relating to the 6 1/4% Dealer remarketable
securities(sm) (Drs.-SM-) due 2013 of the Company (including the form of Drs.)
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>
- ------------------------
** Previously filed.
<PAGE>
TYCO INTERNATIONAL GROUP S.A.
Debt Securities
Underwriting Agreement
June 4, 1998
To the Representatives named
in Schedules I-A, I-B and I-C hereto
of the Underwriters named in
Schedules II-A, II-B and II-C hereto
Ladies and Gentlemen:
Tyco International Group S.A., a Luxembourg company (the "Company"),
proposes to issue and sell to the underwriters named in Schedules II-A, II-B and
II-C hereto (the "Underwriters"), for whom you are acting as representatives
(the "Representatives"), the principal amount of its debt securities identified
in Schedules I-A, I-B and I-C hereto (the "Securities"), to be issued under the
indenture specified in each of Schedules I-A, I-B and I-C hereto (the
"Indenture") among the Company, Tyco International Ltd., a Bermuda company and
the sole shareholder of the Company ("Tyco"), and the Trustee identified in each
of Schedules I-A, I-B and I-C (the "Trustee"). The Securities will be
unconditionally guaranteed by Tyco. If the firm or firms listed in Schedules
II-A, II-B and II-C hereto include only the firm or firms listed in Schedules
I-A, I-B and I-C hereto, then the terms "Underwriters" and "Representatives", as
used herein shall each be deemed to refer to such firm or firms.
The Company and Tyco have prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in each of Schedules I-A, I-B
and I-C hereto) on Form S-3, relating to certain debt securities (the "Debt
Securities") to be issued from time to time by the Company and guarantees to be
issued by Tyco (the "Guarantees", and together with the Debt Securities, the
"Shelf Securities"). The Company and Tyco also have filed with, or propose to
file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities and the
Guarantees. The registration statement, as amended to the date of this
Agreement, is hereinafter referred to as the "Registration Statement" and the
related prospectus covering the Shelf Securities in the form first used to
confirm sales of the Securities and the Guarantees is hereinafter referred to as
the "Basic Prospectus". The Basic Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities and the Guarantees in the
form first used to confirm sales of the Securities is hereinafter referred to as
the "Prospectus". If the Company and Tyco have filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities
<PAGE>
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of the Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein;
provided, however, that documents incorporated by reference shall not be deemed
to include any document filed by the Company or Tyco under the Exchange Act to
the extent that it is superseded in whole or in part by any document
subsequently filed by the Company or Tyco pursuant to the Securities Act or the
Exchange Act. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus and the Prospectus, or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("EDGAR").
The Company and Tyco hereby agree with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities and Tyco agrees
to issue the Guarantees to the several Underwriters as hereinafter provided, and
each Underwriter, on the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective principal amount of
Securities set forth opposite such Underwriter's name in Schedules II-A, II-B
and II-C hereto at the purchase price set forth in Schedules I-A, I-B and I-C
hereto plus accrued interest, if any, from the date specified in Schedules I-A,
I-B and I-C hereto to the date of payment and delivery.
2. The Company and Tyco understand that the several Underwriters
intend (i) to make a public offering of their respective portions of the
Securities and the Guarantees and (ii) initially to offer the Securities and the
Guarantees upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives no later than noon on the Business Day prior to the Closing Date
(as defined below), on the date and at the time and place set forth in each of
Schedules I-A, I-B and I-C hereto (or at such other time and place on the same
or such other date, not later than the fifth Business Day (as defined below)
thereafter, as you and the Company may agree in writing). As used herein, the
term "Business Day" means any day other than a day on which banks are permitted
or required to be closed in New York City. The
-2-
<PAGE>
time and date of such payment and delivery with respect to the Securities are
referred to herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of global notes (the "Global Notes") representing the
Securities, with any transfer taxes payable in connection with the transfer to
the Underwriters of the Securities duly paid by the Company. The Global Notes
will be made available for inspection by the Representatives at the office of
J.P. Morgan Securities Inc., 60 Wall Street, New York, New York 10260, not later
than 1:00 P.M., New York City time, on the Business Day prior to the Closing
Date.
4. The Company and Tyco, jointly and severally, represent and warrant
to each Underwriter that:
(a) the Company and Tyco meet the requirements for use of the
Form S-3 under the Securities Act in respect of the registration
of the Securities and the Guarantees; the Registration Statement
has been declared effective by the Commission under the Securities
Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company or
Tyco, threatened by the Commission and any request on the part of
the Commission for additional information has been complied with;
and the Registration Statement and Prospectus (as amended or
supplemented if the Company and Tyco shall have furnished any
amendments or supplements thereto) comply, or will comply, as the
case may be, in all material respects with the Securities Act and
the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust
Indenture Act"), and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein (in the case
of the Prospectus and any amendment or supplement thereto, in the
light of the circumstances under which they were made) not
misleading, and the Prospectus, as amended or supplemented at the
Closing Date, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that the foregoing representations and warranties shall not apply
to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee, and (ii) statements or
omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company or Tyco in writing by such
Underwriter through the Representatives expressly for use therein;
each preliminary prospectus and the Prospectus, including any
amendment or supplement thereto, delivered to the Underwriters for
use in connection with the offering contemplated hereby were
identical to the electronically transmitted copies
-3-
<PAGE>
thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T of the Securities Act;
(b) the documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(c) Coopers & Lybrand L.L.P. who certified the financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement are independent public
accountants required by the Securities Act;
(d) the financial statements, and the related schedules and
notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of Tyco and its consolidated
subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for
the periods specified; said financial statements have been
prepared in conformity with United States generally accepted
accounting principles ("GAAP") applied on a consistent basis,
except as otherwise disclosed therein, and the supporting
schedules included or incorporated by reference in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein; the pro forma financial
information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable, and is based upon good faith estimates and assumptions
believed by Tyco to be reasonable; and the selected financial data
included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of
the audited financial statements included or incorporated by
reference in the Registration Statement;
(e) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has
not been any change in the capital stock or long-term debt (on a
consolidated basis) of Tyco, or any material adverse change, or
any development involving a prospective material adverse change
that is reasonably likely to occur, in or affecting the general
affairs, business,
-4-
<PAGE>
prospects, management, financial position, shareholders' equity
or results of operations of Tyco and its subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), otherwise than as set forth or
contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus, neither Tyco nor any of its
subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) material to
Tyco and its subsidiaries, taken as a whole;
(f) the Company is a corporation duly and validly organized
and existing under the laws of Luxembourg, with power and
authority (corporate and other) to own, lease and operate its
properties and conduct its business as described in the
Prospectus, and is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of each
other jurisdiction in which the nature of its business or its
ownership or leasing of its properties requires qualification,
except where the failure to be so qualified or in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(g) Tyco is a limited liability company duly and validly
organized and existing and in good standing under the laws of
Bermuda, with power and authority (corporate and other) to own,
lease and operate its properties and conduct its business as
described in the Prospectus, and is duly qualified as a foreign
corporation to transact business and is in good standing under the
laws of each other jurisdiction in which the nature of its
business or the ownership or leasing of its properties requires
qualification, except where the failure to be so qualified or in
good standing would not have a Material Adverse Effect;
(h) each of the Company's subsidiaries listed on Schedule III
hereto is a "significant subsidiary" (as such term is defined in
Rule 1-02 of Regulation S-X under the Securities Act), is duly and
validly organized and existing as a corporation under the laws of
its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus, is duly qualified as a
foreign corporation to transact business and is in good standing
under the laws of each jurisdiction in which the nature of its
business or its ownership or leasing of its properties requires
qualification, except where the failure to be so qualified or in
good standing would not have a Material Adverse Effect; and,
except as otherwise disclosed in the Registration Statement, all
the outstanding shares of capital stock of the Company and each
subsidiary of the Company have been duly authorized and validly
issued, are fully-paid and non-assessable, and (except as
indicated on Schedule III for non-material liens that have arisen
in the ordinary course of business and, in the case of non-United
States subsidiaries, for directors' qualifying shares) are owned
by the Company, as the case may be, directly or indirectly, free
and clear of all liens, encumbrances, security interests and
claims;
(i) Tyco had as of the date indicated in the Prospectus a
duly authorized and outstanding capitalization as set forth in the
Prospectus in the column entitled
-5-
<PAGE>
"Actual"; except as disclosed in the Prospectus, there are no
holders of securities (debt or equity) of Tyco or any of its
subsidiaries, or holders of rights, warrants or options to obtain
securities of Tyco or any of its subsidiaries who have the right
to request the Company or Tyco to register securities held by
them under the Securities Act other than holders who have elected
not to exercise their rights or whose securities have been so
registered;
(j) this Agreement has been duly authorized, executed and
delivered by each of the Company and Tyco;
(k) the Securities have been duly authorized and when duly
authenticated by the Trustee pursuant to the Indenture and issued
and delivered pursuant to this Agreement, will have been duly
executed, issued and delivered and will constitute valid and
binding obligations of the Company entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding instrument of the Company; the Indenture has been duly
qualified under the Trust Indenture Act; and the Securities and
the Indenture will conform in all material respects to the
descriptions thereof in the Prospectus;
(l) the Guarantees have been duly authorized and when the
Securities have been duly authenticated by the Trustee pursuant to
the Indenture and issued and delivered pursuant to this Agreement,
will have been duly executed, issued and delivered and will
constitute valid and binding obligations of Tyco entitled to the
benefits provided by the Indenture; the Indenture has been duly
authorized, executed and delivered by Tyco and constitutes a valid
and binding instrument of Tyco; and the Guarantees will conform in
all material respects to the descriptions thereof in the
Prospectus;
(m) neither Tyco nor any of its subsidiaries is, or, with the
giving of notice or lapse of time or both would be, in violation
of or in default under, its memorandum of association, articles
of organization, certificate of incorporation or other similar
charter document (each a "Charter") or by-laws or any indenture,
mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which Tyco or any of its subsidiaries
is a party or by which it or any of them or any of their
respective properties is bound or subject, except for violations
and defaults which individually and in the aggregate would not
result in a Material Adverse Effect, or are not material to the
holders of the Securities and the Guarantees; the execution,
delivery and performance of this Agreement, the Indenture, the
Securities and the Guarantees by the Company and Tyco, as the
case may be, the consummation of the transactions contemplated
herein, therein and in the Prospectus (including the issuance and
sale of the Securities and the Guarantees and the use of the
proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use of Proceeds") and the
compliance by the Company and Tyco of their respective
obligations under this Agreement, the Indenture, the Securities
and the Guarantees do not and will not
-6-
<PAGE>
conflict with or result in a breach of any of the terms or
provisions of or with the giving of notice or lapse of time or
both constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon the property
or assets of Tyco or any of its subsidiaries pursuant to, any
indenture, mortgage, deed or trust, loan agreement or other
material agreement or instrument to which Tyco or any of its
subsidiaries is a party or by which Tyco or any of its
subsidiaries is bound or to which any of the property or assets
of Tyco or any of its subsidiaries is subject, except for such
conflicts, breeches, defaults, liens, charges or encumbrances
that would not result in a Material Adverse Effect, nor will
any such action result in any violation of the provisions of
the Charter or the by-laws of Tyco or any of its subsidiaries
or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over Tyco or any of its subsidiaries or any of
their respective properties; and no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for
the issue and sale of the Securities and the issue of the
Guarantees or the consummation by the Company or Tyco of the
transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained
under the Securities Act, the Trust Indenture Act and as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities and the
Guarantees by the Underwriters;
(n) other than as disclosed in or contemplated by the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the knowledge of the
Company or Tyco, threatened to which Tyco or any of its
subsidiaries is or may be a party or to which any property or
assets of Tyco or any of its subsidiaries is or may be the subject
which, if determined adversely to Tyco or any of its subsidiaries,
could individually or in the aggregate have, or reasonably be
expected to have, a Material Adverse Effect or which could be
reasonably expected to materially and adversely affect the
consummation of the transactions contemplated by this Agreement or
the performance by the Company and Tyco of their respective
obligations hereunder; and no such proceedings are pending or, to
the best of the Company's and Tyco's knowledge, threatened against
Tyco or any of its subsidiaries which are required to be disclosed
in the Registration Statement or the Prospectus, other than those
disclosed therein; and there are no contracts, mortgages, loan
agreements, notes, leases or other documents to which Tyco or any
of its subsidiaries is a party or by which any of them may be
bound or to which any property or assets of Tyco or any of its
subsidiaries is subject that are required to be filed as an
exhibit to the Registration Statement or required to be described
in the Registration Statement or the Prospectus which are not
filed or described as required;
(o) except as disclosed in the Prospectus, no labor dispute
with the employees of Tyco or any of its subsidiaries exists or,
to the knowledge of the Company or Tyco, is threatened, which
could reasonably be expected to result in a Material Adverse
Effect;
-7-
<PAGE>
(p) neither the Company nor Tyco is, and upon the issuance
and sale of the Securities and the issuance of the Guarantees as
herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will be, an "investment
company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(q) neither the Company nor Tyco or, to the best of the
Company's and Tyco's knowledge, any officer, director, employee
agent or shareholder thereof, in each case acting on behalf of the
Company or Tyco, as the case may be, has done any act or
authorized, directed or participated in any act, in violation of
any provision of the Foreign Corrupt Practices Act of 1977, as
amended, applicable to such entity or person for which civil or
criminal liability or penalties, as the case may be, could
currently be imposed on the Company or Tyco;
(r) the choice of law provisions set forth in this Agreement
are legal, valid and binding under the laws of Luxembourg and
Bermuda, respectively, and will be recognized and given effect to
by the courts of Luxembourg and Bermuda, respectively, (unless a
court determined that doing so would be contrary to public policy
in Luxembourg and Bermuda, respectively,); each of the Company and
Tyco has the legal capacity to sue and be sued in its own name
under the laws of Luxembourg and Bermuda, respectively; each of
the Company and Tyco has, under the laws of Luxembourg and
Bermuda, respectively, the power to submit, and has irrevocably
submitted, to the jurisdiction of the New York courts and has
validly and irrevocably appointed CT Corporation System, 1633
Broadway, New York, New York 10019, U.S.A. (and any successor
entity), as its authorized agent for the service of process
pursuant to this Agreement; the irrevocable submission of the
Company and Tyco to the jurisdiction of the New York courts and
the waiver by the Company and Tyco of any immunity and any
objection to the venue of the proceeding in a New York court,
included in this Agreement, are legal, valid and binding under the
laws of Luxembourg and Bermuda, respectively; neither the Company
nor Tyco or any of their respective assets is entitled to immunity
(or any similar defense) from suit, execution, attachment or other
legal process in Luxembourg and Bermuda, respectively; this
Agreement is in proper legal form under the laws of Luxembourg and
Bermuda, respectively, for the enforcement thereof against the
Company and Tyco, respectively, and nothing in Luxembourg and
Bermuda law, respectively, prevents suit upon this Agreement in
the courts of Luxembourg and Bermuda, respectively; it is not
necessary (a) in order to enable the Underwriters to exercise or
enforce their rights under this Agreement in Luxembourg and
Bermuda, respectively, or (b) by reason of the entry into and/or
the performance of this Agreement, that any of the Underwriters
should be licensed, qualified, authorized or entitled to do
business in Luxembourg and Bermuda, respectively; and
(s) in any proceedings in Luxembourg and Bermuda,
respectively, or elsewhere in connection with this Agreement, the
Company and Tyco will not be entitled to claim
-8-
<PAGE>
for themselves or any of their respective assets or property
immunity from suit, execution, attachment or other legal process.
Any certificate signed by any officer of the Company or Tyco delivered
to the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or Tyco, as the case may be, to each
Underwriter as to the matters covered thereby.
5. The Company and Tyco, jointly and severally, covenant and agree
with each of the several Underwriters as follows:
(a) to file the Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act not later than the
Commission's close of business on the second Business Day
following the date of determination of the offering prices of the
Securities or, if applicable, such earlier time as may be required
by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Company and Tyco, a signed
copy of the Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits and documents
incorporated by reference therein and, during the period mentioned
in paragraph (g) below, to furnish each of the Underwriters as
many copies of any preliminary prospectus and the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request;
(c) from the date hereof and prior to the Closing Date, to
furnish you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not
to file any such proposed amendment or supplement to which you
reasonably and timely object;
(d) to file promptly, subject to the provisions of paragraph
(c) above, all reports and any definitive proxy or information
statements required to be filed by Tyco with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
during the period mentioned in paragraph (f) below;
(e) during the period mentioned in paragraph (g) below, to
advise you promptly, and to confirm such advice in writing, (i)
when any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to
the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or
the initiation or threatening of any proceeding for that purpose
known to the Company or Tyco, and (iv) of the receipt by the
Company or Tyco of any notification with respect to any suspension
of the qualification of the Securities and the Guarantees for
offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use their
respective best efforts to prevent the
-9-
<PAGE>
issuance of any such stop order or notification and, if issued,
to obtain as soon as possible the withdrawal thereof;
(f) the Company and Tyco will comply with the Securities Act
and the Exchange Act so as to permit the completion of the
distribution of the Securities and the Guarantees contemplated in
this Agreement and in the Prospectus;
(g) if, during such period after the first date of the public
offering of the Securities and the Guarantees as in the opinion of
counsel for the Underwriters a prospectus relating to the
Securities and the Guarantees is required by law to be delivered
in connection with sales of the Securities and the Guarantees by
an Underwriter or dealer, any event shall occur as a result of
which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish,
at the expense of the Company and Tyco, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the
Company) to which Securities may have been sold by you on behalf
of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law;
(h) to endeavor to qualify the Securities and the Guarantees
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to continue such
qualification in effect so long as reasonably required for
distribution of the Securities and the Guarantees; provided that
neither the Company nor Tyco shall be required to file a general
consent to service of process or qualify as a foreign corporation
in any jurisdiction in which it is not so qualified or as a dealer
in securities in any jurisdiction in which it is not so qualified
or subject itself to taxation in respect of doing business in any
jurisdiction in which it is not so subject;
(i) to use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Prospectus under "Use of Proceeds";
(j) to make generally available to their security holders and
to you as soon as practicable an earnings statement which shall
satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 of the Commission promulgated thereunder covering a
period of at least twelve months beginning with the first fiscal
quarter of Tyco occurring after the "effective date" (as defined
in Rule 158) of the Registration Statement;
(k) so long as the Securities and the Guarantees are
outstanding, to furnish to you copies of all reports or other
communications (financial or other) furnished to
-10-
<PAGE>
holders of Securities and the Guarantees and copies of any reports
and financial statements furnished to or filed with the
Commission or any national securities exchange;
(m) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of or guaranteed by the Company or Tyco which
are substantially similar to the Securities or the Guarantees
without prior written consent of the Representatives; and
(n) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay
or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without
limiting the generality of the foregoing, all costs and expenses
(i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities and the Guarantees,
including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary
prospectus (including, in each case, all exhibits, amendments and
supplements thereto), (iii) incurred in connection with the
registration or qualification and determination of eligibility for
investment of the Securities and the Guarantees under the laws of
such jurisdictions as the Underwriters may designate, including
reasonable fees of counsel for the Underwriters and their
disbursements, (iv) in connection with the listing of the
Securities and the Guarantees on any stock exchange, (v) related
to any filing with the National Association of Securities Dealers,
Inc., (vi) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement,
the Indenture, the Preliminary and Supplemental Blue Sky Memoranda
and any Legal Investment Survey and the furnishing to the
Underwriters and dealers of copies of the Registration Statement
and the Prospectus, including mailing and shipping, as herein
provided and (vii) payable to rating agencies in connection with
the rating of the Securities, it being understood that the Company
and Tyco shall not be responsible for the fees and expenses of
counsel to the Underwriters except as explicitly set forth herein.
6. The several obligations of the Underwriters hereunder
shall be subject to the following conditions:
(a) the representations and warranties of the Company and
Tyco contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the
Company and Tyco shall have complied with all agreements and all
conditions on their part to be performed or satisfied hereunder at
or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed
for such filing by the rules and regulations under the Securities
Act; no stop order suspending the effectiveness of the
-11-
<PAGE>
Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been
complied with to your satisfaction;
(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have
occurred any downgrading, nor shall any notice have been given of
(i) any downgrading, (ii) any intended or potential downgrading or
(iii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or
guaranteed by the Company or Tyco by any "nationally recognized
statistical rating organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material
change in the capital stock or long-term debt of Tyco or any of
its subsidiaries, or any Material Adverse Effect otherwise than as
set forth or contemplated in the Prospectus, the effect of which
in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of
the Securities and the Guarantees on the terms and in the manner
contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of a managing director or an executive
officer of each of the Company and Tyco with specific knowledge
about each of the Company's and Tyco's financial matters,
satisfactory to you to the effect set forth in subsections (a)
through (c) of this Section and to the further effect that there
has not occurred any Material Adverse Effect;
(f) M. Brian Moroze, General Counsel for Tyco International
(US), Inc., a subsidiary of the Company ("Tyco US"), shall have
furnished to you a written opinion, dated the Closing Date, in
form and substance satisfactory to you, to the effect set forth in
Exhibit A-1 hereto;
(g) Kramer, Levin, Naftalis & Frankel, counsel for the
Company and Tyco, shall have furnished to you their written
opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect set forth in Exhibit A-2
hereto;
(h) Zeyen Beghin Feider Loeff Claeys Verbeke, Luxembourg
counsel for the Company, shall have furnished to you their written
opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect set forth in Exhibit A-3
hereto;
(i) Appleby, Spurling & Kempe, Bermuda counsel for Tyco,
shall have furnished to you their written opinion, dated the
Closing Date, in form and substance satisfactory to you, to the
effect set forth in Exhibit A-4 hereto;
-12-
<PAGE>
(j) on the date hereof and on the Closing Date, Coopers &
Lybrand L.L.P. shall have furnished to you letters, dated such
dates, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants "comfort letters" to underwriters with respect to
the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(k) you shall have received on and as of the Closing Date
an opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel
to the Underwriters, with respect to the validity of the
Indenture, the Securities and the Guarantees, the Registration
Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall
have received such papers and information as they may
reasonably request to enable them to pass upon such matters; and
(l) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
7. The Company and Tyco, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without limitation the
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company or Tyco
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company or Tyco in writing by such
Underwriter through the Representatives expressly for use therein; provided that
the foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) and, if required by law, a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, Tyco and their respective directors and officers who
sign the Registration Statement and each person who controls the Company or Tyco
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity
-13-
<PAGE>
from the Company and Tyco to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company and Tyco in
writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by the
first of the named Representatives on each of Schedules I-A, I-B and I-C hereto
and any such separate firm for the Company, Tyco and their respective directors
and officers who sign the Registration Statement and such control persons of the
Company and Tyco shall be designated in writing by the Company and Tyco. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement unless the
Indemnifying Person in good faith shall be contesting the reasonableness of such
fees and expenses (but only to the extent so contested) or the entitlement of
the Indemnified Person to indemnification under the terms of this Section 7. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
-14-
<PAGE>
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Tyco on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and Tyco on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and Tyco on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Securities and Guarantees (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and Tyco and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities and Guarantees. The relative fault of the Company and Tyco on the one
hand and the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and Tyco or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, Tyco and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedules I-A, I-B and I-C hereto, and not joint.
-15-
<PAGE>
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and Tyco set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, Tyco, their respective officers or directors or any other person
controlling the Company or Tyco and (iii) acceptance of and payment for any of
the Securities and the Guarantees.
8. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Representatives, by notice
given to the Company or Tyco, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market
System, the Chicago Board Options Exchange, the Chicago Mercantile Exchange or
the Chicago Board of Trade, (ii) trading of any securities of or guaranteed by
the Company or Tyco shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and which,
in the judgment of the Representatives, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase Securities which it or they have
agreed to purchase under this Agreement, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities, the other Underwriters shall be obligated severally in
the proportions that the principal amount of Securities set forth opposite their
respective names in Schedules II-A, II-B and II-C hereto bears to the aggregate
principal amount of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-tenth of such principal amount of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to you, the
Company and Tyco for the purchase of such Securities are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter, the Company or Tyco. In any such
case either you or the
-16-
<PAGE>
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the part of
the Company or Tyco to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company or Tyco shall be unable to
perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Company and Tyco agree to
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of the Securities
and the Guarantees.
11. This Agreement shall inure to the benefit of and be
binding upon the Company, Tyco, the Underwriters and any Indemnified Persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor or assign by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by
you jointly or by the first of the named Representatives set forth in each of
Schedules I-A, I-B and I-C hereto alone on behalf of the Underwriters, and any
such action taken by you jointly or by the first of the named Representatives
set forth in each of Schedules I-A, I-B and I-C hereto alone shall be binding
upon the Underwriters. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
given at the address set forth in each of Schedules I-A, I-B and I-C hereto.
Notices to the Company and Tyco shall be given to them, if to the Company, at 6,
Avenue Emile Reuter, 2nd Floor, L-2420, Luxembourg, Attention: the Managing
Directors; if to Tyco, at The Gibbons Building, 10 Queens Street, Suite 301,
Hamilton HM 11, Bermuda, Attention: Secretary, with a copy to Tyco International
(US), Inc., One Tyco Park, Exeter, New Hampshire 03833; Attention: General
Counsel.
13. Each of the Company and Tyco (i) agrees that any legal
suit, action or proceeding brought by any party to enforce any rights under or
with respect to this Agreement 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, U.S.A., (ii) 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,
(iii) 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 (iv)
-17-
<PAGE>
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 Company 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 it in any such suit, action or proceeding and shall be taken and
held to be valid personal service upon it. Said designation and appointment
shall be irrevocable. Nothing in this Section 13 shall affect the right of the
Underwriters, their affiliates or any indemnified party to serve process in any
manner permitted by law or limit the right of the Underwriters, their affiliates
or any indemnified party to bring proceedings against the Company or Tyco in the
courts of any jurisdiction or jurisdictions. Each of the Company 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 and the Guarantees are outstanding but in no event for a
period longer than five years from the date of this Agreement. Each of the
Company 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 Company and Tyco
agrees to designate a new agent in New York City on the terms and for the
purposes of this provision reasonably satisfactory to the Underwriters.
To the extent that either the Company 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 subdivision 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 Agreement, or any other documents or
actions to enforce judgments in respect of any thereof, it 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.
14. If pursuant to a judgment or order being made or
registered against the Company or Tyco, any payment under or in connection with
this Agreement to an Underwriter 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
Underwriter 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 Underwriter falls short of the amount
due under the terms of this Agreement, the Company or Tyco shall, to the extent
permitted by law, as a separate and independent obligation, indemnify and hold
harmless such Underwriter 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 Underwriter is able on the relevant date
to purchase
-18-
<PAGE>
United States dollars with the Judgment Currency and shall take into account any
premium and other costs of exchange.
15. This Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall constitute one and
the same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
Very truly yours,
TYCO INTERNATIONAL GROUP S.A.
By: /s/ RICHARD W. BRANN
-----------------------------------
Name: Richard W. Brann
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ MARK H. SWARTZ
-----------------------------------
Name: Mark H. Swartz
Title: Executive Vice President
-19-
<PAGE>
Accepted: June 4, 1998
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ABN AMRO INCORPORATED
BEAR, STEARNS & CO. INC.
BT ALEX. BROWN INCORPORATED
CITICORP SECURITIES, INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
FIRST UNION CAPITAL MARKETS CORP.
NATIONSBANC MONTGOMERY SECURITIES LLC
PAINEWEBBER INCORPORATED
SCOTIA CAPITAL MARKETS (USA) INC.
UBS SECURITIES LLC
By: J.P. Morgan Securities Inc.
By: /s/ Maria Sramek
-------------------------------
Maria Sramek
Vice President
-20-
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I-A
<S> <C>
Representatives: J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette
Securities Corporation
BT Alex. Brown Incorporated
First Chicago Capital Markets, Inc.
NationsBanc Montgomery Securities LLC
Underwriting Agreement Dated: June 4, 1998
Registration Statement No.: 333-50855 and 333-50855-01
Title of Securities: 6-1/8% Notes due 2001
Aggregate Principal Amount: $750,000,000
Purchase Price: 99.562% plus accrued interest, if any, from June 9, 1998
Price to Public: 99.912% of the principal amount of the Securities, plus accrued
interest, if any, from June 9, 1998 to the Closing Date
Indenture: Indenture dated as of June 9, 1998 among Tyco International Group
S.A., Tyco International Ltd., The Bank of New York, as Trustee as
amended by the Supplemental Indenture No. 1 dated as of June 9, 1998
Maturity: June 15, 2001
Interest Rate: 6-1/8% per annum, accruing from June 9, 1998
Interest Payment Dates: June 15 and December 15, commencing December 15, 1998
Optional Redemption Provisions: None
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: June 9, 1998
Closing Location: New York, New York
Address for Notices to c/o J.P. Morgan Securities Inc.
Underwriters: 60 Wall Street
New York, New York 10260
</TABLE>
-22-
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I-B
<S> <C>
Representatives: J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette
Securities Corporation
ABN AMRO Incorporated
Credit Lyonnais Securities (USA) Inc.
First Union Capital Markets Corp.
Scotia Capital Markets (USA) Inc.
Underwriting Agreement Dated: June 4, 1998
Registration Statement No.: 333-50855 and 333-50855-01
Title of Securities: 6-3/8% Notes due 2005
Aggregate Principal Amount: $750,000,000
Purchase Price: 98.966% plus accrued interest, if any, from June 9, 1998
Price to Public: 99.591% of the principal amount of the Securities, plus accrued
interest, if any, from June 9, 1998 to the Closing Date
Indenture: Indenture dated as of June 9, 1998 among Tyco International Group
S.A., Tyco International Ltd., The Bank of New York, as Trustee as
amended by the Supplemental Indenture No. 2 dated as of June 9, 1998
Maturity: June 15, 2005
Interest Rate: 6-3/8% per annum, accruing from June 9, 1998
Interest Payment Dates: June 15 and December 15, commencing December 15, 1998
Optional Redemption Provisions: None
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: June 9, 1998
Closing Location: New York, New York
Address for Notices to c/o J.P. Morgan Securities Inc.
Underwriters: 60 Wall Street
New York, New York 10260
</TABLE>
-24-
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I-C
<S> <C>
Representatives: J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette
Securities Corporation
Bear, Stearns & Co. Inc.
Citicorp Securities, Inc.
PaineWebber Incorporated
UBS Securities LLC
Underwriting Agreement Dated: June 4, 1998
Registration Statement No.: 333-50855 and 333-50855-01
Title of Securities: 7% Notes due 2028
Aggregate Principal Amount: $500,000,000
Purchase Price: 98.404% plus accrued interest, if any, from June 9, 1998
Price to Public: 99.279% of the principal amount of the Securities, plus accrued
interest, if any, from June 9, 1998 to the Closing Date
Indenture: Indenture dated as of June 9, 1998 among Tyco International Group
S.A., Tyco International Ltd., The Bank of New York, as Trustee as
amended by the Supplemental Indenture No. 3 dated as of June 9, 1998
Maturity: June 15, 2028
Interest Rate: 7% per annum, accruing from June 9, 1998
Interest Payment Dates: June 15 and December 15, commencing December 15, 1998
Optional Redemption Provisions: The Notes may be redeemed, in whole or in part, at the option of
the Company at any time at a redemption price equal to the greater
of (i) 100% of the principal amount of the Notes, and (ii) as
determined by the Quotation Agent (as defined in the Indenture),
the sum of the present values of the remaining scheduled payments
of principal and interest thereon (not including any portion of
such payments of interest accrued as of the date of redemption)
discounted to the date of redemption on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Redemption Treasury Rate (as defined in the Indenture)
plus 15 basis points plus, in each case, accrued interest thereon
to the date of redemption. The Notes are also subject to redemption
to the extent provided in Article Twelve of the Indenture.
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: June 9, 1998
Closing Location: New York, New York
Address for Notices to c/o J.P. Morgan Securities Inc.
Underwriters: 60 Wall Street
New York, New York 10260
</TABLE>
-26-
<PAGE>
SCHEDULE II-A
<TABLE>
<CAPTION>
6-1/8% NOTES DUE 2001:
- ----------------------
Principal Amount of
Underwriter Securities To Be Purchased
----------- --------------------------
<S> <C>
J.P. Morgan Securities Inc.................... $ 238,000,000
Morgan Stanley & Co. Incorporated............. $ 197,500,000
Lehman Brothers Inc. ......................... $ 88,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated............... $ 88,000,000
Credit Suisse First Boston Corporation........ $ 58,000,000
Donaldson, Lufkin & Jenrette
Securities Corporation............. $ 58,000,000
BT Alex. Brown Incorporated................... $ 7,500,000
First Chicago Capital Markets, Inc............ $ 7,500,000
NationsBanc Montgomery Securities LLC......... $ 7,500,000
---------------
Total................................ $ 750,000,000
---------------
---------------
</TABLE>
<PAGE>
SCHEDULE II-B
6-3/8% NOTES DUE 2005:
- ----------------------
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Securities To Be Purchased
----------- --------------------------
<S> <C>
J.P. Morgan Securities Inc..................... $ 233,500,000
Morgan Stanley & Co. Incorporated.............. $ 194,500,000
Lehman Brothers Inc. .......................... $ 88,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................ $ 88,000,000
Credit Suisse First Boston Corporation......... $ 58,000,000
Donaldson, Lufkin & Jenrette
Securities Corporation.............. $ 58,000,000
ABN AMRO Incorporated.......................... $ 7,500,000
Credit Lyonnais Securities (USA) Inc........... $ 7,500,000
First Union Capital Markets Corp............... $ 7,500,000
Scotia Capital Markets (USA) Inc............... $ 7,500,000
-----------------
Total................................. $ 750,000,000
-----------------
-----------------
</TABLE>
<PAGE>
SCHEDULE II-C
7% NOTES DUE 2028:
- ------------------
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Securities To Be Purchased
----------- --------------------------
<S> <C>
J.P. Morgan Securities Inc..................... $ 156,000,000
Morgan Stanley & Co. Incorporated.............. $ 130,000,000
Lehman Brothers Inc. .......................... $ 58,500,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................ $ 58,500,000
Credit Suisse First Boston Corporation......... $ 38,500,000
Donaldson, Lufkin & Jenrette
Securities Corporation.............. $ 38,500,000
Bear, Stearns & Co. Inc........................ $ 5,000,000
Citicorp Securities, Inc....................... $ 5,000,000
Paine Webber Incorporated...................... $ 5,000,000
UBS Securities LLC............................. $ 5,000,000
--------------
Total................................. $ 500,000,000
--------------
--------------
</TABLE>
<PAGE>
Exhibit A-1
FORM OF OPINION OF THE GENERAL COUNSEL
OF TYCO (US) TO BE DELIVERED
PURSUANT TO SECTION 6(f)
(i) Each of Tyco and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to be
so qualified or in good standing would not have a Material Adverse Effect.
(ii) Each significant subsidiary of Tyco (as such term is defined in Rule
1-02 of Regulation S-X under the Securities Act) (each, a "Significant
Subsidiary" and together with all of Tyco's other subsidiaries, the
"Subsidiaries") is a corporation validly organized and existing under the laws
of its jurisdiction of incorporation, has the requisite power and authority
(corporate and other) to own, lease and operate its properties and conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing under the laws of each
other jurisdiction in which such qualification is required except where the
failure to be so qualified and be in good standing would not have a Material
Adverse Effect; and all of the issued shares of capital stock of each Subsidiary
have been duly authorized and validly issued, are fully paid and non-assessable,
and (except for non-material liens that have arisen in the ordinary course of
business and, in the case of non-United States subsidiaries, for directors'
qualifying shares) are owned directly or indirectly by Tyco or the Company, as
the case may be, directly or indirectly, free and clear of all liens,
encumbrances, equities or claims.
(iii) To the best of such counsel's knowledge, other than as disclosed in
or contemplated by the Prospectus, there are no legal or governmental
proceedings pending or threatened to which Tyco or any of its Subsidiaries is or
may be a party or to which any property of Tyco or any of its Subsidiaries is or
may be the subject which, if determined adversely to Tyco or such subsidiaries,
could individually or in the aggregate reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated in this Agreement or
the performance by Tyco or the Company of all of the provisions of their
respective obligations hereunder.
(iv) To the best of such counsel's knowledge, no legal or governmental
proceedings are pending or threatened against Tyco or any of its Subsidiaries
which are required to be disclosed in the Registration Statement or the
Prospectus; other than those disclosed therein.
(v) To the best of such counsel's knowledge there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
documents to which Tyco or the Company is a party or by which any of them may be
bound that are required to be described in the Registration Statement or the
Prospectus or required to be filed as an exhibit to the Registration Statement,
other than those described or filed or incorporated by reference as an exhibit
as required.
(vi) This Agreement has been duly executed and delivered by each of the
Company and Tyco;
<PAGE>
(vii) The Securities have been duly executed by the Company.
(viii) The Guarantees have been duly executed by Tyco.
(ix) The Indenture has been duly executed and delivered by each of the
Company and Tyco.
(x) Neither Tyco nor any of its Subsidiaries is, or, based upon presently
existing circumstances with the giving of notice or lapse of time or both would
be, in violation of or in default under, their respective Charters or by-laws or
any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or
other agreement or instrument known to such counsel to which Tyco or any of its
Subsidiaries is a party or by which it or any of them or any of their respective
properties is bound, except for violations and defaults which individually and
in the aggregate would not result in a Material Adverse Effect (other than with
respect to Tyco's Memorandum of Association and Bye-Laws and the Company's
Articles of Association, as to which such counsel need not express an opinion)
or are not material to the holders of the Securities and the Guarantees.
(xi) The execution, delivery, and performance by the Company and Tyco of
this Agreement, the Indenture, the Securities and the Guarantees, as applicable,
and the consummation of the transactions contemplated hereby, thereby and in the
Registration Statement (including the issue and sale of the Securities and the
Guarantees and the use of proceeds from the sale of the Securities as described
in the Prospectus under the caption "Use of Proceeds") and the compliance by the
Company and Tyco with their respective obligations under this Agreement do not
and will not, whether with or without the giving of notice or the lapse of time
or both, conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition of
any lien, charge, or encumbrance upon the property or assets of the Company or
any Subsidiary pursuant to, any contract, indenture, mortgage, deed of trust,
loan agreement, note, lease or other material agreement or instrument known to
such counsel to which Tyco or any of its Subsidiaries is a party or is bound or
to which any of their respective properties or assets is subject (except for
such conflicts, breaches, defaults or liens, charges or encumbrances that would
not have a Material Adverse Effect), nor will any such action result in any
violation of the provisions of the Charter or the by-laws of any subsidiary of
Tyco (other than the Company) or any applicable law or statute or any order,
writ, decree, rule or regulation to the knowledge of such counsel (other than
state securities or Blue Sky laws or regulations, as to which counsel need
express no opinion) of any court or governmental agency or body having
jurisdiction over Tyco or any of its Subsidiaries or any of their respective
properties or assets.
(xii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States, the State of New York or the Commonwealth of Massachusetts is legally
required to be obtained by the Company or Tyco in connection with the
authorization, execution and delivery of this Agreement and the Indenture or the
consummation of the transactions contemplated hereby and thereby (including the
issuance and sale of the Securities and the issuance of the Guarantees), except
such consents, approvals, authorizations, orders, registrations or
qualifications as have been obtained under the Securities Act and the Trust
Indenture Act and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities and the
distribution of the Guarantees by the Underwriters.
(xiii) The statements in the Prospectus under "Legal Proceedings"
incorporated by reference from
-2-
<PAGE>
Item 3 of Part I of Tyco's Transition Report on Form 10-K for the nine months
ended September 30, 1997 and in the Registration Statement in Item 15, insofar
as such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present in all material respects the
information called for with respect to such legal matters, documents or
proceedings.
(xiv) Each document incorporated by reference in the Registration
Statement and the Prospectus, when filed with the Commission under the Exchange
Act, complied as to form in all material respects with the requirements of the
Exchange Act (except that such counsel need express no opinion as to financial
statements, the notes thereto and related schedules and other financial,
numerical or accounting data included in or omitted from any of the documents
referred to in this paragraph (xv) or as to Form T-1).
(xv) To the best of such counsel's knowledge, no holders of securities of
Tyco or any of its Subsidiaries have rights to the registration of such
securities or other securities as a result of the filing by the Company and the
Guarantees of the Registration Statement or the offering contemplated thereby.
(xvi) Neither the Company nor Tyco is an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
Although such counsel has not undertaken to determine independently the
accuracy and completeness of the statements contained in the Registration
Statement, the Prospectus or any supplements or amendments thereto, such counsel
has obtained information as a result of discussions and meetings with officers
and other representatives of the Company and Tyco and discussions with
representatives of the independent public accountants of the Company and Tyco,
in connection with the preparation of the Registration Statement and the
Prospectus and the examination of other information and documents requested by
such counsel. Although such counsel has not undertaken to determine
independently, and, therefore, such counsel does not assume responsibility,
explicitly or implicitly, for the accuracy or completeness of the statements
contained in the Registration Statement or the Prospectus or any amendments or
supplements thereto, and such counsel cannot provide assurance that its
procedures described in this sentence would necessarily reveal matters of
significance with respect to the following comments, during the course of the
above-described procedures, nothing has come to such counsel's attention that
has caused such counsel to believe that the Registration Statement or any
amendment thereto (including the documents incorporated by reference therein),
on the effective date thereof or on the date of this Agreement, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any supplement thereto (including documents
incorporated therein by reference), on the date of this Agreement or on the date
of such opinion, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need not express a view
with respect to financial statements, notes thereto and related schedules and
other financial or accounting data included in the Registration Statement or the
Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company, Tyco and public officials. Such opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including,
-3-
<PAGE>
without limitation, the Legal Opinion Accord of the ABA Section of Business Law
(1991). Such opinion may state that such counsel expresses no opinion concerning
any laws other than the laws of the Commonwealth of Massachusetts and the State
of New York and the Federal laws of the United States of America.
-4-
<PAGE>
Exhibit A-2
FORM OF OPINION OF THE COMPANY'S AND TYCO'S
UNITED STATES COUNSEL TO
BE DELIVERED PURSUANT TO SECTION 6(g)
(i) This Agreement constitutes the valid and binding agreement of the
Company and Tyco enforceable against the Company and Tyco in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, moratorium and other similar laws affecting enforceability of
creditors' rights generally and general principles of equity and except as
rights to indemnity and contribution hereunder may be limited by applicable law.
(ii) When the Securities have been duly authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, the Securities will constitute
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, moratorium and other similar laws affecting
enforceability of creditors' rights generally and general principles of equity
and entitled to the benefits provided by the Indenture.
(iii) When the Securities have been duly authenticated in accordance with
the terms of the Indenture and issued and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, the Guarantees will
constitute valid and binding obligations of Tyco entitled to the benefits
provided by the Indenture and enforceable against Tyco in accordance with their
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, moratorium and other similar laws affecting enforceability of
creditors' rights generally and general principles of equity.
(iv) The Indenture constitutes a valid and binding instrument of each of
the Company and Tyco enforceable against each of the Company and Tyco in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, moratorium and other similar laws affecting
enforceability of creditors' rights generally and general principles of equity;
and the Indenture has been duly qualified under the Trust Indenture Act.
(v) The Indenture has been duly qualified under the Trust Indenture Act.
(vi) The descriptions of documents contained in the Prospectus under
"Description of the Notes", "Description of Debt Securities and the Guarantees",
"Plan of Distribution" and "Underwriting" conform in all material respects to
the terms of the applicable documents.
(vii) The Registration Statement, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment and supplement to the
Registration Statement and the Prospectus comply as to form in all material
respects with the requirements of the Securities Act and the Trust Indenture
Act.
(viii) The Registration Statement has been declared effective under the
Securities Act; any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the
-1-
<PAGE>
time period required by Rule 424(b); and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act, and no proceedings for that
purpose have been instituted or are pending or, to such counsel's knowledge,
threatened by the Commission.
(ix) The statements made in the Prospectuses under "Certain United States
Federal Income and Luxembourg Tax Consequences" to the extent that they are
statements of United States federal laws or legal conclusions thereunder, have
been reviewed by us and fairly present the information disclosed therein in all
material respects.
Although such counsel has not undertaken to determine independently the
accuracy and completeness of the statements contained in the Registration
Statement, the Prospectus or any supplements or amendments thereto, such counsel
has obtained information as a result of discussions and meetings with officers
and other representatives of the Company and Tyco and discussions with
representatives of the independent public accountants of the Company and Tyco,
in connection with the preparation of the Registration Statement, the Prospectus
and any amendments and supplements thereto, and the examination of other
information and documents deemed relevant by such counsel. Although such counsel
has not undertaken to determine independently, and, therefore, such counsel does
not assume responsibility, explicitly or implicitly, for the accuracy and
completeness of the statements contained in the Registration Statement, the
Prospectus or any supplements or amendments thereto, and such counsel cannot
provide assurance that its procedures described in the preceding sentence would
necessarily reveal matters of significance with respect to the following
comments, during the course of the above-described procedures, nothing has come
to such counsel's attention that has caused such counsel to believe that the
Registration Statement or any amendment thereto (including documents
incorporated therein by reference), on the effective date thereof or on the date
of this Agreement, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or any supplement
thereto (including documents incorporated therein by reference), on the date of
this Agreement or on the date of such opinion, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need not express a view with respect to financial statements,
notes thereto and related schedules and other financial or accounting data
included in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company, Tyco and public officials. Such opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). Such opinion may state that such counsel
expresses no opinion concerning any laws other than the laws of the State of New
York and the Federal laws of the United States of America and that as to various
matters relating to the authorization, execution and delivery of this Agreement,
the Indenture, the Securities and the Guarantees, such counsel has relied upon
the opinions of the General Counsel of Tyco (US), Luxembourg counsel to the
Company and Bermuda counsel to Tyco.
-2-
<PAGE>
Exhibit A-3
FORM OF OPINION OF THE COMPANY'S LUXEMBOURG
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 6(h)
(i) The Company is a corporation validly organized and existing as a
corporation under the laws of Luxembourg.
(ii) The Company has the requisite power and authority (corporate and
other) to own, lease and operate its properties and to conduct its business as
described in the Prospectus as then amended or supplemented and to enter into
and perform its obligations under this Agreement, the Indenture and the
Securities.
(iii) All of the issued shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and non-assessable, and
(except for non-material liens that have arisen in the ordinary course of
business and for directors' qualifying shares) are owned directly or indirectly
by Tyco, free and clear of all liens, encumbrances, equities or claims.
(iv) To the best of such counsel's knowledge, other than as disclosed in
or contemplated by the Prospectus, there are no legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any
of its subsidiaries is or may be the subject, before or brought by any court or
governmental agency or body in Luxembourg which, if determined adversely to the
Company or such subsidiaries, could individually or in the aggregate reasonably
be expected to have a material adverse effect on the business, prospects,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, or which could reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations thereunder.
(v) This Agreement has been duly authorized, executed and delivered by the
Company.
(vi) The Securities have been duly authorized by the Company.
(vii) The Indenture has been duly authorized by the Company.
(viii) The execution, delivery, and performance by the Company of this
Agreement, the Indenture and the Securities, and the consummation of the
transactions contemplated hereby, thereby and in the Registration Statement
(including the issue and sale of the Securities and the use of proceeds from the
sale of the Securities as described in the Prospectus under the caption "Use of
Proceeds") and the compliance by the Company with its obligations under this
Agreement do not and will not, whether with or without the giving of notice or
the lapse of time or both, result in any violation of the provisions of the
Charter of the Company or any applicable law or statute or any order, writ,
decree, rule or regulation of Luxembourg or of any court or governmental agency
or body in Luxembourg having jurisdiction over the Company or any of its
-1-
<PAGE>
properties or assets.
(ix) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body in Luxembourg
is legally required to be obtained by the Company in connection with the
authorization, execution and delivery of this Agreement and the Indenture or the
consummation of the transactions contemplated hereby and thereby (including the
issuance and sale of the Securities) except such consents, approvals,
authorizations, orders, registrations or qualifications as have been obtained.
(x) The statements made in the Prospectus under "Certain United States
Federal Income and Luxembourg Tax Consequences" to the extent that they are
statements of Luxembourg law or legal conclusions thereunder, have been reviewed
by us and fairly present the information disclosed therein in all material
respects.
(xi) The courts of Luxembourg will give effect to: (i) the choice of the
laws of New York to govern this Agreement and the Indenture which stipulate New
York as the choice of law assuming such choice is valid under the laws of the
state of New York; (ii) the submission to the jurisdiction of the federal and
state courts in The City of New York, State of New York by the Company in this
Agreement and in the Indenture which contain such submission to jurisdiction
clause, assuming such submission is valid under the laws of the state of New
York; (iii) the appointment by the Company of CT Corporation System as an agent
for service of process in this Agreement and in the Indenture; and (iv) the
waiver of any objection to the venue of any action in any such court (including
the waiver and agreement not to claim any objection that the proceeding has been
in an inconvenient forum).
(xii) A final and conclusive judgment of a court of the United States
under which a sum of money is payable may be the subject of enforcement
proceedings in the [Supreme Court] of Luxembourg by action for the debt
evidenced by the foreign court's judgment.
(xiii) Under the circumstances of the sale of the Securities to the
Underwriters in the manner contemplated by the this Agreements and the resale of
the Securities by the Underwriters, no ad valorem stamp duties or similar taxes
are payable in Luxembourg.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). Such opinion may state that such counsel
expresses no opinion concerning any laws other than the laws of Luxembourg.
-2-
<PAGE>
Exhibit A-4
FORM OF OPINION OF TYCO'S
BERMUDA COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 6(i)
(i) Tyco is a limited liability company validly organized and existing and
in good standing under the laws of Bermuda.
(ii) Tyco has the requisite power and authority (corporate and other) to
own, lease and operate its properties and to conduct its business as described
in, the Prospectus as then amended or supplemented and to enter into and perform
its obligations under this Agreement, the Indenture and the Guarantees.
(iii) To the best of such counsel's knowledge, other than as disclosed in
or contemplated by the Prospectus, there are no legal or governmental
proceedings pending or threatened to which Tyco or any of its subsidiaries is or
may be a party or to which any property of Tyco or any of its subsidiaries is or
may be the subject, before or brought by any court or governmental agency or
body in Bermuda which, if determined adversely to Tyco or such subsidiaries,
could individually or in the aggregate reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated in this Agreement or
the performance by Tyco of its obligations thereunder.
(iv) This Agreement has been duly authorized by Tyco.
(v) The Guarantees have been duly authorized by Tyco.
(vi) The Indenture has been duly authorized by Tyco.
(vii) The execution, delivery, and performance by Tyco of this Agreement,
the Indenture and the Guarantees, and the consummation of the transactions
contemplated hereby, thereby and in the Registration Statement (including the
issuance of the Guarantees) and the compliance by Tyco with its obligations
under this Agreement do not and will not, whether with or without the giving of
notice or the lapse of time or both, result in any violation of the provisions
of the Charter or the bye-laws of Tyco or any applicable law or statute or any
order, writ, decree, rule or regulation of Bermuda or of any court or
governmental agency or body in Bermuda having jurisdiction over Tyco or any of
its properties or assets.
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body in Bermuda is
legally required to be obtained by Tyco in connection with the authorization,
execution and delivery of this Agreement and the Indenture or the consummation
of the other transactions contemplated hereby and thereby (including the
issuance of the Guarantees), except for the BMA permission which has been
obtained and the filing of the Prospectus pursuant to Section 26(1) of The
Companies Act, 1981 which has been made.
-1-
<PAGE>
(ix) The information in the Registration Statement under the first
paragraph of Item 15, insofar as such information constitutes a summary of the
legal matters, documents or proceedings under the laws of Bermuda referred to
therein, fairly presents the information with respect to such legal matters,
documents or proceedings.
(x) The courts of Bermuda will give effect to: (i) the choice of the laws
of New York to govern this Agreement and the Indenture which stipulate New York
as the choice of law assuming such choice is valid under the laws of the state
of New York; (ii) the submission to the jurisdiction of the federal and state
courts in The City of New York, State of New York by Tyco in this Agreement and
in the Indenture which contain such submission to jurisdiction clause, assuming
such submission is valid under the laws of the state of New York; (iii) the
appointment by Tyco of CT Corporation System as an agent for service of process
contained in this Agreement and in the Indenture which contain such an
appointment clause; and (iv) the waiver of any objection to the venue of any
action in any such court (including the waiver and agreement not to claim any
objection that the proceeding has been in an inconvenient forum).
(xi) A final and conclusive judgment of a court of the United States under
which a sum of money is payable (not being a sum payable in respect of taxes or
other charges of a like nature, in respect of a fine of other penalty, or in
respect of Multiple Damages as defined in The Protection of Trading Interest
Act, 1981) may be the subject of enforcement proceedings in the Supreme Court of
Bermuda under the Common Law Doctrine of Obligation by action for the debt
evidenced by the foreign court's judgment. A final opinion as to the
availability of this remedy should be sought when the facts surrounding the
United States court's judgment are known, but, on general principles, one would
expect such proceedings to be successful provided that:
(a) the court which gave the judgment was competent to hear the action
in accordance with Private International Law Principles as applied in Bermuda;
(b) the judgment is not contrary to public policy in Bermuda, has not
been obtained by fraud, or in proceedings contrary to natural justice and is not
based on an error in Bermuda law; and
(c)enforcement of such a judgment against assets in Bermuda may involve
the conversion of the judgment into Bermuda dollars, but the Bermuda Monetary
Authority's policy is to give the consents necessary to enable recovery in the
currency of the obligation.
(xiv) Under the circumstances of the sale of the Securities to the
Underwriters in the manner contemplated by this Agreement and the resale of the
Securities by the Underwriters, no ad valorem stamp duties or similar taxes are
payable in Bermuda.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of Tyco and public officials. Such opinion shall not state
that it is to be governed or qualified by, or that it is otherwise subject to,
any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991). Such opinion may state that such counsel expresses no
opinion concerning any laws other than the laws of Bermuda.
-2-
<PAGE>
TYCO INTERNATIONAL GROUP S.A.
$750,000,000 of 6 1/4% Dealer remarketable securitiesSM
("Drs.SM") due 2013
Underwriting Agreement
June 4, 1998
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Tyco International Group S.A., a Luxembourg company (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") among the Company, Tyco International
Ltd., a Bermuda company and the sole shareholder of the Company ("Tyco") and the
Trustee identified in Schedule I (the "Trustee"). The Securities will be
unconditionally guaranteed by Tyco. If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives", as used herein shall each be deemed
to refer to such firm or firms.
The Company and Tyco have prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "Debt Securities") to be issued
from time to time by the Company and guarantees to be issued by Tyco (the
"Guarantees" and, together with the Debt Securities, the "Shelf Securities").
The Company and Tyco also have filed with, or propose to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities and the Guarantees. The registration
statement, as amended to the date of this Agreement, is hereinafter referred to
as the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities and the
Guarantees is hereinafter referred to as the "Basic Prospectus". The Basic
Prospectus as supplemented by the prospectus supplement specifically relating to
the Securities and the Guarantees in the form first used to confirm sales of the
Securities is hereinafter referred to as the "Prospectus". If the Company and
Tyco have filed an abbreviated registration statement pursuant to Rule
<PAGE>
462(b) under the Securities Act (the "Rule 462 Registration Statement"), then
any reference herein to the term "Registration Statement" shall be deemed to
include such Rule 462 Registration Statement. Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein;
provided, however, that documents incorporated by reference shall not be deemed
to include any document filed by the Company or Tyco under the Exchange Act to
the extent that it is superseded in whole or in part by any document
subsequently filed by the Company or Tyco pursuant to the Securities Act or the
Exchange Act. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus and the Prospectus, or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("EDGAR").
The Company and Tyco hereby agree with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities and Tyco
agrees to issue the Guarantees to the several Underwriters as hereinafter
provided, and each Underwriter, on the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase, severally and not jointly, from the Company the respective
principal amount of Securities set forth opposite such Underwriter's name in
Schedule II hereto at the purchase price set forth in Schedule I hereto plus
accrued interest, if any, from the date specified in Schedule I hereto to the
date of payment and delivery.
2. The Company and Tyco understand that the several Underwriters
intend (i) to make a public offering of their respective portions of the
Securities and the Guarantees and (ii) initially to offer the Securities and the
Guarantees upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives no later
-2-
<PAGE>
than noon on the Business Day prior to the Closing Date (as defined below), on
the date and at the time and place set forth in Schedule I hereto (or at such
other time and place on the same or such other date, not later than the fifth
Business Day (as defined below) thereafter, as you, the Company may agree in
writing). As used herein, the term "Business Day" means any day other than a day
on which banks are permitted or required to be closed in New York City. The time
and date of such payment and delivery with respect to the Securities are
referred to herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of one or more global notes (the "Global Note")
representing the Securities, with any transfer taxes payable in connection with
the transfer to the Underwriters of the Securities duly paid by the Company. The
Global Note will be made available for inspection by the Representatives at the
office of J.P. Morgan Securities Inc., 60 Wall Street, New York, New York 10260,
not later than 1:00 P.M., New York City time, on the Business Day prior to the
Closing Date.
4. The Company and Tyco, jointly and severally, represent and warrant
to each Underwriter that:
(a) the Company and Tyco meet the requirements for use of the
Form S-3 under the Securities Act in respect of the registration of the
Securities and the Guarantees, the Registration Statement has been
declared effective by the Commission under the Securities Act; no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Company or Tyco, threatened by the Commission
and any request on the part of the Commission for additional
information has been complied with; and the Registration Statement and
Prospectus (as amended or supplemented if the Company and Tyco shall
have furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Trust Indenture Act"), and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus
and any amendment or supplement thereto, in the light of the
circumstances under which they were made) not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided,
-3-
<PAGE>
however, that the foregoing representations and warranties shall not
apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee, and (ii) statements or omissions in
the Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter furnished to
the Company or Tyco in writing by such Underwriter through the
Representatives expressly for use therein; each preliminary prospectus
and the Prospectus, including any amendment or supplement thereto,
delivered to the Underwriters for use in connection with the offering
contemplated hereby were identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T of the Securities Act;
(b) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(c) Coopers & Lybrand L.L.P. who certified the financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement are independent public
accountants required by the Securities Act;
(d) the financial statements, and the related schedules and
notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of Tyco and its consolidated
subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the
periods specified; said financial statements have been prepared in
conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis, except as otherwise disclosed
therein, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein; the pro
-4-
<PAGE>
forma financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as applicable,
and is based upon good faith estimates and assumptions believed by Tyco
to be reasonable; and the selected financial data included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included or incorporated by reference in the Registration
Statement;
(e) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt (on a
consolidated basis) of Tyco, or any material adverse change that is
reasonably likely to occur, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, shareholders' equity or
results of operations of Tyco and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated in the Prospectus,
neither Tyco nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to Tyco and its subsidiaries, taken as a whole;
(f) the Company is a corporation duly and validly organized
and existing under the laws of Luxembourg, with power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Prospectus, and is duly
qualified as a foreign corporation to transact business and is in good
standing under the laws of each other jurisdiction in which the nature
of its business or its ownership or leasing of its properties requires
qualification, except where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(g) Tyco is a limited liability company duly and validly
organized and existing and in good standing under the laws of Bermuda,
with power and authority (corporate and other) to own, lease and
operate its properties and conduct its business as described in the
Prospectus, and is duly qualified as a foreign corporation to transact
business and is in good standing under the laws of each other
jurisdiction in which the nature of its business or the ownership or
leasing of its properties requires qualification, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect;
(h) each of the Company's subsidiaries listed on Schedule III
hereto is a "significant subsidiary" (as such term is defined in Rule
1-02 of Regulation S-X
-5-
<PAGE>
under the Securities Act), is duly and validly organized and existing
as a corporation under the laws of its jurisdiction of incorporation,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, is duly
qualified as a foreign corporation to transact business and is in good
standing under the laws of each jurisdiction in which the nature of its
business or its ownership or leasing of its properties requires
qualification, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect; and, except as
otherwise disclosed in the Registration Statement, all the outstanding
shares of capital stock of the Company and each subsidiary of the
Company have been duly authorized and validly issued, are fully-paid
and non-assessable, and (except as indicated on Schedule III for
non-material liens that have arisen in the ordinary course of business
and, in the case of non-United States subsidiaries, for directors'
qualifying shares) are owned by the Company, as the case may be,
directly or indirectly, free and clear of all liens, encumbrances,
security interests and claims;
(i) Tyco had as of the date indicated in the Prospectus a duly
authorized and outstanding capitalization as set forth in the
Prospectus in the column entitled "Actual"; except as disclosed in the
Prospectus, there are no holders of securities (debt or equity) of Tyco
or any of its subsidiaries, or holders of rights, warrants or options
to obtain securities of Tyco or any of its subsidiaries who have the
right to request the Company or Tyco to register securities held by
them under the Securities Act other than holders who have elected not
to exercise their rights or whose securities have been so registered;
(j) this Agreement has been duly authorized, executed and
delivered by each of the Company and Tyco;
(k) the remarketing agreement between the Company, Tyco and
J.P. Morgan Securities Inc., as remarketing dealer with respect to the
Securities (the "Remarketing Agreement") has been duly authorized,
executed and delivered by each of the Company and Tyco;
(l) the Securities have been duly authorized and when duly
authenticated by the Trustee pursuant to the Indenture and issued and
delivered pursuant to this Agreement, will have been duly executed,
issued and delivered and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding instrument of the Company;
the Indenture has been duly qualified under the Trust Indenture Act;
and the Securities and the Indenture will conform in all material
respects to the descriptions thereof in the Prospectus;
-6-
<PAGE>
(m) the Guarantees have been duly authorized and when the
Securities have been duly authenticated by the Trustee pursuant to the
Indenture and issued and delivered pursuant to this Agreement, will
have been duly executed, issued and delivered and will constitute valid
and binding obligations of Tyco entitled to the benefits provided by
the Indenture; the Indenture has been duly authorized, executed and
delivered by Tyco and constitutes a valid and binding instrument of
Tyco; and the Guarantees will conform in all material respects to the
descriptions thereof in the Prospectus;
(n) neither Tyco nor any of its subsidiaries is, or, with the
giving of notice or lapse of time or both would be, in violation of or
in default under, its memorandum of association, articles of
organization, certificate of incorporation or other similar charter
document (each a "Charter") or by-laws or any indenture, mortgage, deed
of trust, loan agreement, note, lease or other agreement or instrument
to which Tyco or any of its subsidiaries is a party or by which it or
any of them or any of their respective properties is bound or subject,
except for violations and defaults which individually and in the
aggregate would not result in a Material Adverse Effect, or are not
material to the holders of the Securities and the Guarantees; the
execution, delivery and performance of this Agreement, the Indenture,
the Remarketing Agreement, the Securities and the Guarantees by the
Company and Tyco, as the case may be, the consummation of the
transactions contemplated herein, therein and in the Prospectus
(including the issuance and sale of the Securities and the Guarantees
and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds") and
the compliance by the Company and Tyco of their respective obligations
under this Agreement, the Indenture, the Remarketing Agreement, the
Securities and the Guarantees do not and will not conflict with or
result in a breach of any of the terms or provisions of or with the
giving of notice or lapse of time or both constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon the property or assets of Tyco or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which Tyco or
any of its subsidiaries is a party or by which Tyco or any of its
subsidiaries is bound or to which any of the property or assets of Tyco
or any of its subsidiaries is subject, except for such conflicts,
breaches, defaults, liens, charges or encumbrances that would not
result in a Material Adverse Effect, nor will any such action result in
any violation of the provisions of the Charter or the by-laws of Tyco
or any of its subsidiaries or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over Tyco, or any of its subsidiaries or any of
their respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities and the issue of the Guarantees or the consummation by the
Company or Tyco of
-7-
<PAGE>
the transactions contemplated by this Agreement, the Indenture or the
Remarketing Agreement, except such consents, approvals, authorizations,
orders, licenses, registrations or qualifications as have been obtained
under the Securities Act, the Trust Indenture Act and as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities and the Guarantees by the
Underwriters;
(o) other than as disclosed in or contemplated by the
Prospectus, there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the Company or
Tyco, threatened to which Tyco or any of its subsidiaries is or may be
a party or to which any property or assets of Tyco or any of its
subsidiaries is or may be the subject which, if determined adversely to
Tyco or any of its subsidiaries, could individually or in the aggregate
have, or reasonably be expected to have, a Material Adverse Effect or
which could be reasonably expected to materially and adversely affect
the consummation of the transactions contemplated by this Agreement or
the Remarketing Agreement or the performance by the Company and Tyco of
their respective obligations hereunder or thereunder; and no such
proceedings are pending or, to the best of the Company's and Tyco's
knowledge, threatened against Tyco or any of its subsidiaries which are
required to be disclosed in the Registration Statement or the
Prospectus, other than those disclosed therein; and there are no
contracts, mortgages, loan agreements, notes, leases or other documents
to which Tyco or any of its subsidiaries is a party or by which any of
them may be bound or to which any property or assets of Tyco or any of
its subsidiaries is subject that are required to be filed as an exhibit
to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required;
(p) except as disclosed in the Prospectus, no labor dispute
with the employees of Tyco or any of its subsidiaries exists or, to the
knowledge of the Company or Tyco, is threatened, which could reasonably
be expected to result in a Material Adverse Effect;
(q) neither the Company nor Tyco is, and upon the issuance and
sale of the Securities and the issuance of the Guarantees as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(r) neither the Company nor Tyco or, to the best of the
Company's and Tyco's knowledge, any officer, director, employee agent
or shareholder thereof, in each case acting on behalf of the Company or
Tyco, as the case may be, has done
-8-
<PAGE>
any act or authorized, directed or participated in any act, in
violation of any provision of the Foreign Corrupt Practices Act of
1977, as amended, applicable to such entity or person for which civil
or criminal liability or penalties, as the case may be, could currently
be imposed on the Company or Tyco;
(s) the choice of law provisions set forth in this Agreement
are legal, valid and binding under the laws of Luxembourg and Bermuda,
respectively, and will be recognized and given effect to by the courts
of Luxembourg and Bermuda, respectively, (unless a court determined
that doing so would be contrary to public policy in Luxembourg and
Bermuda, respectively,); each of the Company and Tyco has the legal
capacity to sue and be sued in its own name under the laws of
Luxembourg and Bermuda, respectively; each of the Company and Tyco has,
under the laws of Luxembourg and Bermuda, respectively, the power to
submit, and has irrevocably submitted, to the jurisdiction of the New
York courts and has validly and irrevocably appointed CT Corporation
System, 1633 Broadway, New York, New York 10019, U.S.A. (and any
successor entity) as its authorized agent for the service of process
pursuant to this Agreement; the irrevocable submission of the Company
and Tyco to the jurisdiction of the New York courts and the waiver by
the Company and Tyco of any immunity and any objection to the venue of
the proceeding in a New York court, included in this Agreement, are
legal, valid and binding under the laws of Luxembourg and Bermuda,
respectively; neither the Company nor Tyco or any of their respective
assets is entitled to immunity (or any similar defense) from suit,
execution, attachment or other legal process in Luxembourg and Bermuda,
respectively; this Agreement is in proper legal form under the laws of
Luxembourg and Bermuda, respectively, for the enforcement thereof
against the Company and Tyco, respectively, and nothing in Luxembourg
and Bermuda law, respectively, prevents suit upon this Agreement in the
courts of Luxembourg and Bermuda, respectively; and it is not necessary
(a) in order to enable the Underwriters to exercise or enforce their
rights under this Agreement in Luxembourg and Bermuda, respectively, or
(b) by reason of the entry into and/or the performance of this
Agreement, that any of the Underwriters should be licensed, qualified,
authorized or entitled to do business in Luxembourg and Bermuda,
respectively; and
(t) in any proceedings in Luxembourg and Bermuda,
respectively, or elsewhere in connection with this Agreement, the
Company and Tyco will not be entitled to claim for themselves or any of
their respective assets or property immunity from suit, execution,
attachment or other legal process.
Any certificate signed by any officer of the Company or Tyco delivered
to the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or Tyco, as the case may be, to each
Underwriter as to the matters covered thereby.
-9-
<PAGE>
5. The Company and Tyco, jointly and severally, covenant and agree
with each of the several Underwriters as follows:
(a) to file the Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities or, if
applicable, such earlier time as may be required by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Company and Tyco, a signed copy of
the Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (g)
below, to furnish each of the Underwriters as many copies of any
preliminary prospectus and the Prospectus (including all amendments and
supplements thereto) and documents incorporated by reference therein as
you may reasonably request;
(c) from the date hereof and prior to the Closing Date, to
furnish you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
and timely object;
(d) to file promptly, subject to the provisions of paragraph
(c) above, all reports and any definitive proxy or information
statements required to be filed by Tyco with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the period
mentioned in paragraph (f) below;
(e) during the period mentioned in paragraph (g) below, to
advise you promptly, and to confirm such advice in writing, (i) when
any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the initiation or threatening of any
proceeding for that purpose known to the Company or Tyco, and (iv) of
the receipt by the Company or Tyco of any notification with respect to
any suspension of the qualification of the Securities and the
Guarantees for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use their best
efforts to prevent the issuance of any such stop order or notification
and, if issued, to obtain as soon as possible the withdrawal thereof;
-10-
<PAGE>
(f) the Company and Tyco will comply with the Securities Act
and the Exchange Act so as to permit the completion of the distribution
of the Securities and the Guarantees contemplated in this Agreement and
in the Prospectus;
(g) if, during such period after the first date of the public
offering of the Securities and the Guarantees as in the opinion of
counsel for the Underwriters a prospectus relating to the Securities
and the Guarantees is required by law to be delivered in connection
with sales of the Securities and the Guarantees by an Underwriter or
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Company and Tyco, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with law;
(h) to endeavor to qualify the Securities and the Guarantees
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Securities and the Guarantees; provided that neither the Company
nor Tyco shall be required to file a general consent to service of
process or qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or as a dealer in securities in any
jurisdiction in which it is not so qualified or subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not so subject;
(i) to use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Prospectus under "Use of Proceeds";
(j) to make generally available to their security holders and
to you as soon as practicable an earnings statement which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of Tyco occurring
after the "effective date" (as defined in Rule 158) of the Registration
Statement;
-11-
<PAGE>
(k) so long as the Securities and the Guarantees are
outstanding, to furnish to you copies of all reports or other
communications (financial or other) furnished to holders of Securities
and the Guarantees, and copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange;
(l) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company or Tyco which are
substantially similar to the Securities or the Guarantees without prior
written consent of the Representatives; and
(m) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities and
the Guarantees, including any expenses of the Trustee, (ii) incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities and the Guarantees under the laws of such jurisdictions as
the Underwriters may designate, including reasonable fees of counsel
for the Underwriters and their disbursements, (iv) in connection with
the listing of the Securities and the Guarantees on any stock exchange,
(v) related to any filing with the National Association of Securities
Dealers, Inc., (vi) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the
Indenture, the Preliminary and Supplemental Blue Sky Memoranda and any
Legal Investment Survey and the furnishing to the Underwriters and
dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided and (vii) payable to
rating agencies in connection with the rating of the Securities, it
being understood that the Company and Tyco shall not be responsible for
the fees and expenses of counsel to the Underwriters except as
explicitly set forth herein.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company and Tyco
contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date and the Company and Tyco shall
have complied with
-12-
<PAGE>
all agreements and all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company or Tyco
by any "nationally recognized statistical rating organization", as such
term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material change
in the capital stock or long-term debt of Tyco or any of its
subsidiaries, or any Material Adverse Effect otherwise than as set
forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities
and the Guarantees on the terms and in the manner contemplated in the
Prospectus; and neither Tyco nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order to decree, otherwise
than as et forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of each of the
Company and Tyco with specific knowledge about each of the Company's
and Tyco's financial matters, satisfactory to you to the effect set
forth in subsections (a) through (c) of this Section and to the further
effect that there has not occurred any Material Adverse Effect;
(f) M. Brian Moroze, General Counsel for Tyco International
(US), Inc., a subsidiary of the Company ("Tyco US"), shall have
furnished to you a written
-13-
<PAGE>
opinion, dated the Closing Date, in form and substance satisfactory to
you, to the effect set forth in Exhibit A-1 hereto;
(g) Kramer, Levin, Naftalis & Frankel, counsel for the Company
and Tyco, shall have furnished to you their written opinion, dated the
Closing Date, in form and substance satisfactory to you, to the effect
set forth in Exhibit A-2 hereto;
(h) Zeyen Beghin Feider Loeff Claeys Verbeke, Luxembourg
counsel for the Company, shall have furnished to you their written
opinion, dated the Closing Date, in form and substance satisfactory to
you, to the effect set forth in Exhibit A-3 hereto;
(i) Appleby, Spurling & Kempe, Bermuda counsel for Tyco, shall
have furnished to you their written opinion, dated the Closing Date, in
form and substance satisfactory to you, to the effect set forth in
Exhibit A-4 hereto;
(j) on the date hereof and on the Closing Date, Coopers &
Lybrand L.L.P. shall have furnished to you letters, dated such date, in
form and substance satisfactory to you, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus;
(k) you shall have received on and as of the Closing Date an
opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel to the
Underwriters, with respect to the validity of the Indenture, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(l) you shall have received on and as of the Closing Date an
opinion of Davis Polk & Wardwell, counsel to the Underwriters, with
respect to the validity of the Securities and the Guarantees, the
conformity of the Securities to the description thereof and other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(m) on or prior to the Closing Date, the Company and Tyco
shall have executed and delivered the Remarketing Agreement in a form
acceptable to J.P. Morgan Securities Inc., as remarketing dealer
thereunder; and
(n) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
-14-
<PAGE>
7. The Company and Tyco, jointly and severally, agree to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including without limitation the reasonable legal fees
and other expenses incurred in connection with any suit, action or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company or Tyco shall have furnished any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company or Tyco in
writing by such Underwriter through the Representatives expressly for use
therein; provided that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, Tyco and their respective directors and officers who
sign the Registration Statement and each person who controls the Company or Tyco
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company and
Tyco to each Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company and Tyco in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom
-15-
<PAGE>
such indemnity may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by the first of the named Representatives on
Schedule I hereto and any such separate firm for the Company, Tyco and their
respective directors and officers who sign the Registration Statement and such
control persons of the Company and Tyco shall be designated in writing by the
Company and Tyco. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement unless the Indemnifying Person in good faith shall be contesting the
reasonableness of such fees and expenses (but only to the extent so contested)
or the entitlement of the Indemnified Person to indemnification under the terms
of this Section 7. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
-16-
<PAGE>
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Tyco on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and Tyco on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and Tyco on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Securities and Guarantees (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and Tyco and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities and Guarantees. The relative fault of the Company and Tyco on the one
hand and the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and Tyco or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, Tyco and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
-17-
<PAGE>
to contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and Tyco set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, Tyco, their respective officers or directors or any other person
controlling the Company or Tyco and (iii) acceptance of and payment for any of
the Securities and the Guarantees.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company or Tyco, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the Nasdaq National Market, the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of or guaranteed by the Company or Tyco
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal
-18-
<PAGE>
amount of Securities that any Underwriter has agreed to purchase pursuant to
Section 1 be increased pursuant to this Section 9 by an amount in excess of
one-tenth of such principal amount of Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Securities and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased, and arrangements
satisfactory to you, the Company and Tyco for the purchase of such Securities
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
Tyco. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company or Tyco to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company or Tyco shall be unable to perform its obligations
under this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company and Tyco agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of the Securities and the Guarantees.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, Tyco, the Underwriters and any Indemnified Persons referred to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Securities from any Underwriter shall be deemed to be a successor or assign
by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
I hereto. Notices to the Company and Tyco shall be given to them, if the
-19-
<PAGE>
Company, at 6, Avenue Emile Reuter, 2nd Floor, L-2420, Luxembourg, Attention:
the Managing Directors; if to Tyco, at The Gibbons Building, 10 Queens Street,
Suite 301, Hamilton HM 11, Bermuda, Attention: Secretary, with a copy to Tyco
International (US), Inc., One Tyco Park, Exeter, New Hampshire 03833; Attention:
General Counsel.
13. Each of the Company and Tyco (i) agrees that any legal suit,
action or proceeding brought by any party to enforce any rights under or with
respect to this Agreement 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, U.S.A., (ii) 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, (iii) 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 (iv) 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 Company 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 it in any such suit, action or proceeding and shall be taken and
held to be valid personal service upon it. Said designation and appointment
shall be irrevocable. Nothing in this Section 13 shall affect the right of the
Underwriters, their affiliates or any indemnified party to serve process in any
manner permitted by law or limit the right of the Underwriters, their affiliates
or any indemnified party to bring proceedings against the Company or Tyco in the
courts of any jurisdiction or jurisdictions. Each of the Company 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 and the Guarantees are outstanding but in no event for a
period longer than five years from the date of this Agreement. Each of the
Company 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 Company and Tyco
agrees to designate a new agent in New York City on the terms and for the
purposes of this provision reasonably satisfactory to the Underwriters.
To the extent that either the Company 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 subdivision thereof) or from any legal process (whether
through service of notice, attachment prior to
-20-
<PAGE>
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property or assets, this Agreement, or any other documents or
actions to enforce judgments in respect of any thereof, it 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.
14. If pursuant to a judgment or order being made or registered
against the Company or Tyco, any payment under or in connection with this
Agreement to an Underwriter 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 Underwriter 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 Underwriter falls short of the amount due
under the terms of this Agreement, the Company or Tyco shall, to the extent
permitted by law, as a separate and independent obligation, indemnify and hold
harmless such Underwriter 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 Underwriter 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.
-21-
<PAGE>
15. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
TYCO INTERNATIONAL GROUP S.A.
By: /s/ RICHARD W. BRANN
-------------------------------
Name: Richard W. Brann
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ MARK H. SWARTZ
-------------------------------
Name: Mark H. Swartz
Title: Executive Vice President
<PAGE>
Accepted: June 4, 1998
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: J.P. Morgan Securities Inc.
By: /s/ Maria Sramek
-----------------------------
Maria Sramek
Vice President
<PAGE>
SCHEDULE I
Representatives: J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette
Securities Corporation
Underwriting Agreement June 4, 1998
Dated:
Registration Statement 333-50855 and 333-50855-01
No.:
Title of Securities: 6 1/4% Dealer remarketable securities
("Drs.") due 2013
Aggregate Principal $750,000,000
Amount:
Purchase Price: 98.903% of the principal amount of the
Drs., plus accrued interest, if any,
from June 9, 1998
Price to Public: 99.503% of the principal amount of the
Drs., plus accrued interest, if any,
from June 9, 1998
Indenture: Indenture dated as of June __, 1998
among the Company, Tyco International
Ltd., The Bank of New York, as Trustee
Final Maturity: May 15, 2013
Interest Rate: 6 1/4% per annum, accruing from June 9,
1998, until the Remarketing Date.
Thereafter, if the Drs. remain
outstanding, they will bear interest
at the Interest Rate to Maturity
determined in accordance with the
procedures described in the Prospectus
Supplement dated June 5, 1998 (the
"Prospectus Supplement") to the
Prospectus dated May 1, 1998.
<PAGE>
Interest Payment Dates: June 15 and December 15, commencing
December 15, 1998
Remarketing/Mandatory The Drs. are subject to mandatory
Repurchase tender on June 15,
Provisions: 2003 (the "Remarketing Date"). If
J.P. Morgan Securities Inc., as
remarketing dealer (the "Remarketing
Dealer"), has elected to remarket the
Drs. as described in the Prospectus
Supplement, the Drs. will be subject
to mandatory tender to the Remarketing
Dealer at 100% of the principal amount
thereof for remarketing on the
Remarketing Date. If the Remarketing
Dealer elects not to remarket the Drs.
on the Remarketing Date, the Company
will be required to purchase on the
Remarketing Date any Drs. that have
not been purchased by the Remarketing
Dealer at 100% of the principal amount
thereof plus accrued interest, if any.
Redemption: The Drs. will be redeemable by the
Company on and after the Remarketing
Date as set forth in the Prospectus
Supplement.
Sinking Fund Provisions: None
Remarketing Agreement: The Company, Tyco and J.P. Morgan
Securities Inc., as remarketing dealer
(the "Remarketing Dealer") shall
execute and deliver a remarketing
agreement on or prior to the Closing
Date. In consideration therefor, the
Remarketing Dealer shall make a
payment to the Company on the Closing
Date equal to 2.905% of the principal
amount of the Drs.
Other Provisions: As set forth in the Prospectus
Supplement
Closing Date and Time of June 9, 1998
Delivery:
Closing Location: New York, New York
Address for Notices to c/o J.P. Morgan Securities Inc.
Underwriters: 60 Wall Street
New York, New York 10260
-2-
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount of
SecuritiesTo Be
Underwriter Purchased
- ----------- -------------------
<S> <C>
J.P. Morgan Securities Inc................................. $ 238,000,000
Morgan Stanley & Co. Incorporated.......................... 197,000,000
Lehman Brothers Inc. ...................................... 88,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated......................................... 88,000,000
Credit Suisse First Boston 58,000,000
Corporation ...............................................
Donaldson, Lufkin & Jenrette Securities
Corporation........................................... 58,000,000
BancAmerica Robertson Stephens............................. 7,500,000
BNY Capital Markets, Inc................................... 7,500,000
CommerzBank Capital Markets Corporation................... 7,500,000
Total................................................. $750,000,000
------------
------------
</TABLE>
<PAGE>
Exhibit A-1
FORM OF OPINION OF THE GENERAL COUNSEL
OF TYCO (US) TO BE DELIVERED
PURSUANT TO SECTION 6(f)
1. Each of Tyco and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to be
so qualified or in good standing would not have a Material Adverse Effect.
2. Each significant subsidiary of Tyco (as such term is defined in
Rule 1-02 of Regulation S-X under the Securities Act) (each, a "Significant
Subsidiary" and together with all of Tyco's other subsidiaries, the
"Subsidiaries") is a corporation validly organized and existing under the laws
of its jurisdiction of incorporation, has the requisite power and authority
(corporate and other) to own, lease and operate its properties and conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing under the laws of each
other jurisdiction in which such qualification is required except where the
failure to be so qualified and be in good standing would not have a Material
Adverse Effect; and all of the issued shares of capital stock of each Subsidiary
have been duly authorized and validly issued, are fully paid and non-assessable,
and (except for non-material liens that have arisen in the ordinary course of
business and, in the case of non-United States subsidiaries, for directors'
qualifying shares) are owned directly or indirectly by Tyco or the Company, as
the case may be, directly or indirectly, free and clear of all liens,
encumbrances, equities or claims.
3. To the best of such counsel's knowledge, other than as disclosed
in or contemplated by the Prospectus, there are no legal or governmental
proceedings pending or threatened to which Tyco or any of its Subsidiaries is or
may be a party or to which any property of Tyco or any of its Subsidiaries is or
may be the subject which, if determined adversely to Tyco or such subsidiaries,
could individually or in the aggregate reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated in the Underwriting
Agreement or the Remarketing Agreement or the performance by Tyco or the Company
of all of the provisions of their respective obligations hereunder or
thereunder.
4. To the best of such counsel's knowledge, no legal or governmental
proceedings are pending or threatened against Tyco or any of its Subsidiaries
which are required to be disclosed in the Registration Statement or the
Prospectus; other than those disclosed therein.
<PAGE>
5. To the best of such counsel's knowledge there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
documents to which Tyco or the Company is a party or by which any of them may be
bound that are required to be described in the Registration Statement or the
Prospectus or required to be filed as an exhibit to the Registration Statement,
other than those described or filed or incorporated by reference as an exhibit
as required.
6. The Underwriting Agreement has been duly executed and delivered by
each of the Company and Tyco.
7. The Securities have been duly executed by the Company.
8. The Guarantees have been duly executed by Tyco.
9. The Indenture has been duly executed and delivered by each of the
Company and Tyco.
10. The Remarketing Agreement has been duly executed and delivered by
each of the Company and Tyco.
11. Neither Tyco nor any of its Subsidiaries is, or, based upon
presently existing circumstances with the giving of notice or lapse of time or
both would be, in violation of or in default under, their respective Charters or
by-laws or any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument known to such counsel to which Tyco
or any of its Subsidiaries is a party or by which it or any of them or any of
their respective properties is bound, except for violations and defaults which
individually and in the aggregate would not result in a Material Adverse Effect
(other than with respect to Tyco's Memorandum of Association and Bye-Laws and
the Company's Articles of Association, as to such which counsel need not express
an opinion) or are not material to the holders of the Securities and the
Guarantees.
12. The execution, delivery, and performance by the Company and Tyco
of the Underwriting Agreement, the Indenture, the Remarketing Agreement, the
Securities and the Guarantees, as applicable, and the consummation of the
transactions contemplated hereby, thereby and in the Registration Statement
(including the issue and sale of the Securities and the Guarantees and the use
of proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds") and the compliance by the Company and Tyco with
their respective obligations under the Underwriting Agreement and the
Remarketing Agreement do not and will not, whether with or without the giving of
notice or the lapse of time or both, conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge, or encumbrance upon the property or
assets of the
2
<PAGE>
Company or any Subsidiary pursuant to, any contract, indenture, mortgage, deed
of trust, loan agreement, note, lease or other material agreement or instrument
known to such counsel to which Tyco or any of its Subsidiaries is a party or is
bound or to which any of their respective properties or assets is subject
(except for such conflicts, breaches, defaults or liens, charges or encumbrances
that would not have a Material Adverse Effect), nor will any such action result
in any violation of the provisions of the Charter or the by-laws of any
subsidiary of Tyco (other than the Company) or, to the knowledge of such
counsel, any applicable law or statute or any order, writ, decree, rule or
regulation (other than state securities or Blue Sky laws or regulations, as to
which counsel need express no opinion) of any court or governmental agency or
body having jurisdiction over Tyco or any of its Subsidiaries or any of their
respective properties or assets.
13. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States, the State of New York or the Commonwealth of Massachusetts is legally
required to be obtained by the Company or Tyco in connection with the
authorization, execution and delivery of the Underwriting Agreement, the
Remarketing Agreement and the Indenture or the consummation of the transactions
contemplated hereby and thereby (including the issuance and sale of the
Securities and the issuance of the Guarantees), except such consents, approvals,
authorizations, orders, registrations or qualifications as have been obtained
under the Securities Act and the Trust Indenture Act and as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities and the distribution of the Guarantees by the
Underwriters.
14. The statements in the Prospectus under "Legal Proceedings"
incorporated by reference from Item 3 of Part I of Tyco's Transition Report on
Form 10-K for the nine months ended September 30, 1997 and in the Registration
Statement in Item 15, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly present in
all material respects the information called for with respect to such legal
matters, documents or proceedings.
15. Each document incorporated by reference in the Registration
Statement and the Prospectus, when filed with the Commission under the Exchange
Act, complied as to form in all material respects with the requirements of the
Exchange Act (except that such counsel need express no opinion as to financial
statements, the notes thereto and related schedules and other financial,
numerical or accounting data included in or omitted from any of the documents
referred to in this paragraph (xv) or as to Form T-1).
16. To the best of such counsel's knowledge, no holders of securities
of Tyco or any of its Subsidiaries have rights to the registration of such
securities or other securities as a result of the filing by the Company and the
Guarantees of the Registration Statement or the offering contemplated thereby.
3
<PAGE>
17. Neither the Company nor Tyco is an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
1940 Act.
Although such counsel has not undertaken to determine independently the
accuracy and completeness of the statements contained in the Registration
Statement, the Prospectus or any supplements or amendments thereto, such counsel
has obtained information as a result of discussions and meetings with officers
and other representatives of the Company and Tyco and discussions with
representatives of the independent public accountants of the Company and Tyco,
in connection with the preparation of the Registration Statement and the
Prospectus and the examination of other information and documents requested by
such counsel. Although such counsel has not undertaken to determine
independently, and, therefore, such counsel does not assume responsibility,
explicitly or implicitly, for the accuracy or completeness of the statements
contained in the Registration Statement or the Prospectus or any amendments or
supplements thereto, and such counsel cannot provide assurance that its
procedures described in this sentence would necessarily reveal matters of
significance with respect to the following comments, during the course of the
above-described procedures, nothing has come to such counsel's attention that
has caused such counsel to believe that the Registration Statement or any
amendment thereto (including the documents incorporated by reference therein),
on the effective date thereof or on the date of the Underwriting Agreement,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any supplement thereto (including
documents incorporated therein by reference), on the date of the Underwriting
Agreement or on the date of such opinion, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
not express a view with respect to financial statements, notes thereto and
related schedules and other financial or accounting data included in the
Registration Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, Tyco and public officials.
Such opinion shall not state that it is to be governed or qualified by, or that
it is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991). Such opinion may state that
such counsel expresses no opinion concerning any laws other than the laws of the
Commonwealth of Massachusetts and the State of New York and the Federal laws of
the United States of America.
4
<PAGE>
Exhibit A-2
FORM OF OPINION OF THE COMPANY'S AND TYCO'S
UNITED STATES COUNSEL TO
BE DELIVERED PURSUANT TO SECTION 6(g)
1. The Underwriting Agreement constitutes the valid and binding
agreement of the Company and Tyco enforceable against the Company and Tyco in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, moratorium and other similar laws affecting
enforceability of creditors' rights generally and general principles of equity
and except as rights to indemnity and contribution hereunder may be limited by
applicable law.
2. When the Securities have been duly authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, the
Securities will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
and other similar laws affecting enforceability of creditors' rights generally
and general principles of equity and entitled to the benefits provided by the
Indenture.
3. When the Securities have been duly authenticated in accordance
with the terms of the Indenture and issued and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, the
Guarantees will have been duly executed, issued and delivered and will
constitute valid and binding obligations of Tyco entitled to the benefits
provided by the Indenture and enforceable against Tyco in accordance with their
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, moratorium and other similar laws affecting enforceability of
creditors' rights generally and general principles of equity.
4. The Indenture constitutes a valid and binding instrument of each
of the Company and Tyco enforceable against each of the Company and Tyco in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, moratorium and other similar laws affecting
enforceability of creditors' rights generally and general principles of equity;
and the Indenture has been duly qualified under the Trust Indenture Act.
5. The Indenture has been duly qualified under the Trust Indenture
Act.
6. The Remarketing Agreement constitutes a valid and binding
instrument of each of the Company and Tyco enforceable against the Company and
Tyco in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy,
<PAGE>
insolvency, moratorium and other similar laws affecting enforceability of
creditors' rights generally and general principles of equity.
7. The descriptions of documents contained in the Prospectus under
"Description of the Drs.", "Description of Debt Securities and the Guarantees",
"Plan of Distribution" and "Underwriting" conform in all material respects to
the terms of the applicable documents.
8. The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment and supplement
to the Registration Statement and the Prospectus comply as to form in all
material respects with the requirements of the Securities Act and the Trust
Indenture Act.
9. The Registration Statement has been declared effective under the
Securities Act; any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule 424(b);
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act, and no proceedings for that purpose have been instituted or are pending or,
to such counsel's knowledge, threatened by the Commission.
10. The statements made in the Prospectus Supplement under "Certain
United States Federal Income and Luxembourg Tax Consequences" to the extent that
they are statements of United States federal laws or legal conclusions
thereunder, have been reviewed by us and fairly present the information
disclosed therein in all material respects.
Although such counsel has not undertaken to determine independently the
accuracy and completeness of the statements contained in the Registration
Statement, the Prospectus or any supplements or amendments thereto, such counsel
has obtained information as a result of discussions and meetings with officers
and other representatives of the Company and Tyco and discussions with
representatives of the independent public accountants of the Company and Tyco,
in connection with the preparation of the Registration Statement, the Prospectus
and any amendments and supplements thereto, and the examination of other
information and documents deemed relevant by such counsel. Although such counsel
has not undertaken to determine independently, and, therefore, such counsel does
not assume responsibility, explicitly or implicitly, for the accuracy and
completeness of the statements contained in the Registration Statement, the
Prospectus or any supplements or amendments thereto, and such counsel cannot
provide assurance that its procedures described in the preceding sentence would
necessarily reveal matters of significance with respect to the following
comments, during the course of the above-described procedures, nothing has come
to such counsel's attention that has caused such counsel to believe that the
Registration Statement or any amendment thereto
2
<PAGE>
(including documents incorporated therein by reference), on the effective date
thereof, or on the date of the Underwriting Agreement, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus or any supplement thereto (including documents incorporated
therein by reference), on the date of the Underwriting Agreement or on the date
of such opinion, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need not express a view
with respect to financial statements, notes thereto and related schedules and
other financial or accounting data included in the Registration Statement or the
Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, Tyco and public officials.
Such opinion shall not state that it is to be governed or qualified by, or that
it is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991). Such opinion may state that
such counsel expresses no opinion concerning any laws other than the laws of the
State of New York and the Federal laws of the United States of America and that
as to various matters relating to the authorization, execution and delivery of
this Agreement, the Indenture, the Securities and the Guarantees, such counsel
has relied upon the opinions of the General Counsel of Tyco (US), Luxembourg
counsel to the Company and Bermuda counsel to Tyco.
3
<PAGE>
Exhibit A-3
FORM OF OPINION OF THE COMPANY'S LUXEMBOURG
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 6(h)
1. The Company is a corporation validly organized and existing as a
corporation under the laws of Luxembourg.
2. The Company has the requisite power and authority (corporate and
other) to own, lease and operate its properties and to conduct its business as
described in the Prospectus as then amended or supplemented and to enter into
and perform its obligations under the Underwriting Agreement, the Indenture, the
Remarketing Agreement and the Securities.
3. All of the issued shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and non-assessable, and
(except for non-material liens that have arisen in the ordinary course of
business and for directors' qualifying shares) are owned directly or indirectly
by Tyco, free and clear of all liens, encumbrances, equities or claims.
4. To the best of such counsel's knowledge, other than as disclosed
in or contemplated by the Prospectus, there are no legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any
of its subsidiaries is or may be the subject, before or brought by any court or
governmental agency or body in Luxembourg which, if determined adversely to the
Company or such subsidiaries, could individually or in the aggregate reasonably
be expected to have a material adverse effect on the business, prospects,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, or which could reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated in the Underwriting Agreement or the Remarketing Agreement or the
performance by the Company of its obligations thereunder.
5. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
6. The Securities have been duly authorized by the Company.
7. The Indenture has been duly authorized by the Company.
8. The Remarketing Agreement has been duly authorized by the Company.
<PAGE>
9. The execution, delivery, and performance by the Company of the
Underwriting Agreement, the Indenture, the Remarketing Agreement and the
Securities, and the consummation of the transactions contemplated hereby,
thereby and in the Registration Statement (including the issue and sale of the
Securities and the use of proceeds from the sale of the Securities as described
in the Prospectus under the caption "Use of Proceeds") and the compliance by the
Company with its obligations under the Underwriting Agreement and the
Remarketing Agreement do not and will not, whether with or without the giving of
notice or the lapse of time or both, result in any violation of the provisions
of the Charter of the Company or any applicable law or statute or any order,
writ, decree, rule or regulation of Luxembourg or of any court or governmental
agency or body in Luxembourg having jurisdiction over the Company or any of its
properties or assets.
10. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body in Luxembourg
is legally required to be obtained by the Company in connection with the
authorization, execution and delivery of the Underwriting Agreement, the
Remarketing Agreement and the Indenture or the consummation of the transactions
contemplated hereby and thereby (including the issuance and sale of the
Securities) except such consents, approvals, authorizations, orders,
registrations or qualifications as have been obtained.
11. The statements made in the Prospectus Supplement under "Certain
United States Federal Income and Luxembourg Tax Consequences" to the extent that
they are statements of Luxembourg law or legal conclusions thereunder, have been
reviewed by us and fairly present the information disclosed therein in all
material respects.
12. The courts of Luxembourg will give effect to: (i) the choice of
the laws of New York to govern the Underwriting Agreement, the Remarketing
Agreement and the Indenture which stipulate New York as the choice of law
assuming such choice is valid under the laws of the state of New York; (ii) the
submission to the jurisdiction of the federal and state courts in The City of
New York, State of New York by the Company in the Underwriting Agreement, the
Remarketing Agreement and the Indenture which contain such submission to
jurisdiction clause, assuming such submission is valid under the laws of the
state of New York; (iii) the appointment by the Company of CT Corporation System
as an agent for service of process in the Underwriting Agreement, the
Remarketing Agreement and the Indenture; and (iv) the waiver of any objection to
the venue of any action in any such court (including the waiver and agreement
not to claim any objection that the proceeding has been in an inconvenient
forum).
13. A final and conclusive judgment of a court of the United States
under which a sum of money is payable may be the subject of enforcement
proceedings in the [Supreme Court] of Luxembourg by action for the debt
evidenced by the foreign court's judgment.
2
<PAGE>
14. Under the circumstances of the sale of the Securities to the
Underwriters in the manner contemplated by the Underwriting Agreement and the
resale of the Securities by the Underwriters, no ad valorem stamp duties or
similar taxes are payable in Luxembourg.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). Such opinion may state that such counsel
expresses no opinion concerning any laws other than the laws of Luxembourg.
3
<PAGE>
Exhibit A-4
FORM OF OPINION OF TYCO'S
BERMUDA COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 6(i)
1. Tyco is a limited liability company validly organized and existing
and in good standing under the laws of Bermuda.
2. Tyco has the requisite power and authority (corporate and other)
to own, lease and operate its properties and to conduct its business as
described in, the Prospectus as then amended or supplemented and to enter into
and perform its obligations under the Underwriting Agreement, the Indenture, the
Remarketing Agreement and the Guarantees.
3. To the best of such counsel's knowledge, other than as disclosed
in or contemplated by the Prospectus, there are no legal or governmental
proceedings pending or threatened to which Tyco or any of its subsidiaries is or
may be a party or to which any property of Tyco or any of its subsidiaries is or
may be the subject, before or brought by any court or governmental agency or
body in Bermuda which, if determined adversely to Tyco or such subsidiaries,
could individually or in the aggregate reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated in the Underwriting
Agreement or the Remarketing Agreement or the performance by Tyco of its
obligations thereunder.
4. The Underwriting Agreement has been duly authorized by Tyco.
5. The Guarantees have been duly authorized by Tyco.
6. The Indenture has been duly authorized by Tyco.
7. The Remarketing Agreement has been duly authorized by Tyco.
8. The execution, delivery, and performance by Tyco of the
Underwriting Agreement, the Indenture, the Remarketing Agreement and the
Guarantees, and the consummation of the transactions contemplated hereby,
thereby and in the Registration Statement (including the issuance of the
Guarantees) and the compliance by Tyco with its obligations under the
Underwriting Agreement and the Remarketing Agreement do not and will not,
whether with or without the giving of notice or the lapse of time or both,
result in any violation of the provisions of the Charter or the bye-laws of Tyco
or any applicable law or statute or any order, writ, decree, rule or regulation
of Bermuda or of
<PAGE>
any court or governmental agency or body in Bermuda having jurisdiction over
Tyco or any of its properties or assets.
9. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body in Bermuda is
legally required to be obtained by Tyco in connection with the authorization,
execution and delivery of the Underwriting Agreement, the Remarketing Agreement
and the Indenture or the consummation of the other transactions contemplated
hereby and thereby (including the issuance of the Guarantees), except for the
BMA permission which has been obtained and the filing of the Prospectus pursuant
to Section 26(1) of The Companies Act, 1981 which has been made.
10. The information in the Registration Statement under the first
paragraph of Item 15, insofar as such information constitutes a summary of the
legal matters, documents or proceedings under the laws of Bermuda referred to
therein, fairly presents the information with respect to such legal matters,
documents or proceedings.
11. The courts of Bermuda will give effect to: (i) the choice of the
laws of New York to govern the Underwriting Agreement, the Remarketing Agreement
and the Indenture which stipulate New York as the choice of law assuming such
choice is valid under the laws of the state of New York; (ii) the submission to
the jurisdiction of the federal and state courts in The City of New York, State
of New York by Tyco in the Underwriting Agreement, the Remarketing Agreement and
the Indenture which contain such submission to jurisdiction clause, assuming
such submission is valid under the laws of the state of New York; (iii) the
appointment by Tyco of CT Corporation System as an agent for service of process
contained in the Underwriting Agreement, the Remarketing Agreement and the
Indenture which contain such an appointment clause; and (iv) the waiver of any
objection to the venue of any action in any such court (including the waiver and
agreement not to claim any objection that the proceeding has been in an
inconvenient forum).
12. A final and conclusive judgment of a court of the United States
under which a sum of money is payable (not being a sum payable in respect of
taxes or other charges of a like nature, in respect of a fine of other penalty,
or in respect of Multiple Damages as defined in The Protection of Trading
Interest Act, 1981) may be the subject of enforcement proceedings in the Supreme
Court of Bermuda under the Common Law Doctrine of Obligation by action for the
debt evidenced by the foreign court's judgment. A final opinion as to the
availability of this remedy should be sought when the facts surrounding the
United States court's judgment are known, but, on general principles, one would
expect such proceedings to be successful provided that:
(a) the court which gave the judgment was competent to hear the action
in accordance with Private International Law Principles as applied in
Bermuda;
2
<PAGE>
(b) the judgment is not contrary to public policy in Bermuda, has not
been obtained by fraud, or in proceedings contrary to natural justice
and is not based on an error in Bermuda law; and
(c) enforcement of such a judgment against assets in Bermuda may
involve the conversion of the judgment into Bermuda dollars, but the
Bermuda Monetary Authority's policy is to give the consents necessary
to enable recovery in the currency of the obligation.
13. Under the circumstances of the sale of the Securities to the
Underwriters in the manner contemplated by the Underwriting Agreement and the
resale of the Securities by the Underwriters, no ad valorem stamp duties or
similar taxes are payable in Bermuda.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of Tyco and public officials. Such opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). Such opinion may state that such counsel
expresses no opinion concerning any laws other than the laws of Bermuda.
3
<PAGE>
- --------------------------------------------------------------------------------
TYCO INTERNATIONAL GROUP S.A.,
as Issuer
AND
TYCO INTERNATIONAL LTD.,
as Guarantor
AND
THE BANK OF NEW YORK,
as Trustee
Indenture
Dated as of June 9, 1998
---------------
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE ONE: DEFINITIONS.........................................................................................1
SECTION 1.1 Certain Terms Defined.......................................................................1
ARTICLE TWO: SECURITIES..........................................................................................7
SECTION 2.1 Forms Generally.............................................................................7
SECTION 2.2 Form of Guarantee...........................................................................7
SECTION 2.3 Form of Trustee's Certificate of Authentication.............................................8
SECTION 2.4 Amount Unlimited; Issuable in Series........................................................8
SECTION 2.5 Authentication and Delivery of Securities...................................................9
SECTION 2.6 Execution of Securities....................................................................10
SECTION 2.7 Certificate of Authentication..............................................................11
SECTION 2.8 Denomination and Date of Securities; Payments of Interest...................................11
SECTION 2.9 Registration, Transfer and Exchange........................................................11
SECTION 2.10 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.................................12
SECTION 2.11 Cancellation of Securities; Destruction Thereof...........................................13
SECTION 2.12 Temporary Securities......................................................................13
SECTION 2.13 Securities Issuable in the Form of a Global Security......................................14
SECTION 2.14 CUSIP Numbers.............................................................................15
ARTICLE THREE: COVENANTS OF THE ISSUER AND THE TRUSTEE ........................................................15
SECTION 3.1 Payment of Principal and Interest..........................................................15
SECTION 3.2 Offices for Payments, etc..................................................................16
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee.........................................16
SECTION 3.4 Paying Agent...............................................................................16
SECTION 3.5 Certificate of the Issuer and the Guarantors...............................................17
SECTION 3.6 Securityholders Lists......................................................................17
SECTION 3.7 Reports by the Issuer and Tyco.............................................................17
SECTION 3.8 Reports by the Trustee.....................................................................17
SECTION 3.9 Limitations on Liens........................................................................17
SECTION 3.10 Limitation on Sale and Lease-Back Transactions............................................19
SECTION 3.11 Limitation on Indebtedness of Subsidiaries.................................................20
SECTION 3.12 Notice to Trustee.........................................................................21
ARTICLE FOUR: REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT .................................21
---------------------------------------------------------------
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default......................21
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt..............................24
SECTION 4.3 Application of Proceeds....................................................................25
SECTION 4.4 Suits for Enforcement......................................................................26
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings........................................26
SECTION 4.6 Limitations on Suits by Securityholders....................................................27
SECTION 4.7 Unconditional Right of Securityholders to Institute Certain Suits..........................27
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default....................27
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 4.9 Control by Securityholders.................................................................27
SECTION 4.10 Waiver of Past Defaults...................................................................28
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances..............28
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay Costs..............................29
ARTICLE FIVE: CONCERNING THE TRUSTEE ..........................................................................29
SECTION 5.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default...............29
SECTION 5.2 Certain Rights of the Trustee..............................................................30
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of
Proceeds Thereof.....................................................................31
SECTION 5.4 Trustee and Agents May Hold Securities; Collections, etc...................................32
SECTION 5.5 Moneys Held by Trustee.....................................................................32
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior Claim............................32
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc.....................................32
SECTION 5.8 Persons Eligible for Appointment as Trustee................................................33
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee..................................33
SECTION 5.10 Acceptance of Appointment by Successor Trustee............................................34
SECTION 5.11 Appointment of Co-Trustee.................................................................35
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business of Trustee....................36
ARTICLE SIX: CONCERNING THE SECURITYHOLDERS ...................................................................36
SECTION 6.1 Evidence of Action Taken by Securityholders................................................36
SECTION 6.2 Proof of Execution of Instruments and of Holding of Securities; Record Date................36
SECTION 6.3 Holders to be Treated as Owners............................................................37
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding..........................................37
SECTION 6.5 Right of Revocation of Action Taken........................................................37
ARTICLE SEVEN: SUPPLEMENTAL INDENTURES..........................................................................38
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders.................................38
SECTION 7.2 Supplemental Indentures With Consent of Securityholders....................................39
SECTION 7.3 Effect of Supplemental Indenture...........................................................40
SECTION 7.4 Documents to Be Given to Trustee...........................................................40
SECTION 7.5 Notation on Securities in Respect of Supplemental Indentures...............................40
ARTICLE EIGHT: CONSOLIDATION, MERGER, SALE OR CONVEYANCE........................................................40
SECTION 8.1 Issuer and Guarantors May Consolidate, etc., on Certain Terms..............................41
SECTION 8.2 Successor Entity Substituted...............................................................41
SECTION 8.3 Opinion of Counsel to Trustee..............................................................41
SECTION 8.4 Exception Applicable to Certain Guarantors.................................................42
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE NINE: SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.........................................42
SECTION 9.2 Issuer's Option to Effect Defeasance or Covenant Defeasance................................43
SECTION 9.3 Defeasance and Discharge...................................................................43
SECTION 9.4 Covenant Defeasance........................................................................43
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance............................................43
SECTION 9.6 Application by Trustee of Funds Deposited for Payment of Securities........................45
SECTION 9.7 Repayment of Moneys Held by Paying Agent...................................................45
SECTION 9.8 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years..................45
SECTION 9.9 Indemnity for Direct Obligations of the United States......................................46
SECTION 9.10 Reinstatement.............................................................................46
ARTICLE TEN: MISCELLANEOUS PROVISIONS...........................................................................46
SECTION 10.1 Incorporators, Shareholders, Officers and Directors of Issuer and Guarantors
Exempt from Individual Liability.....................................................46
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders...............46
SECTION 10.3 Successors and Assigns of Issuer and Guarantors Bound by Indenture........................47
SECTION 10.4 Notices and Demands on Issuer, Guarantors Trustee and Securityholders.....................47
SECTION 10.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein........48
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays...........................................48
SECTION 10.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939...................49
SECTION 10.8 New York Law to Govern....................................................................49
SECTION 10.8 Consent to Jurisdiction and Service of Process............................................49
SECTION 10.8 Judgment Currency.........................................................................50
SECTION 10.9 Counterparts..............................................................................50
SECTION 10.10 Effect of Headings.......................................................................50
ARTICLE ELEVEN: REDEMPTION OF SECURITIES AND SINKING FUNDS......................................................50
SECTION 11.1 Applicability of Article..................................................................50
SECTION 11.2 Notice of Redemption; Partial Redemptions.................................................50
SECTION 11.3 Payment of Securities Called for Redemption...............................................51
SECTION 11.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption.............52
SECTION 11.5 Mandatory and Optional Sinking Funds......................................................52
ARTICLE TWELVE: ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS......................................................54
SECTION 12.1 Redemption Upon Changes in Withholding Taxes..............................................54
SECTION 12.2 Payment of Additional Amounts.............................................................54
ARTICLE THIRTEEN: GUARANTEES....................................................................................56
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 13.1 Guarantee.................................................................................56
SECTION 13.2 Execution and Delivery of Guarantees......................................................57
SECTION 13.3 Release of Guarantees.....................................................................58
SECTION 13.4 Additional Guarantors.....................................................................58
</TABLE>
4
<PAGE>
THIS INDENTURE, dated as of June 9, 1998, among TYCO INTERNATIONAL
GROUP S.A., a Luxembourg company (the "Issuer"), TYCO INTERNATIONAL LTD., a
Bermuda company ("Tyco"), and THE BANK OF NEW YORK, a New York banking
corporation (the "Trustee").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, and the Issuer has duly authorized the execution and
delivery of this Indenture;
WHEREAS, Tyco has duly authorized the execution and delivery of this
Indenture and deems it appropriate from time to time to issue its guarantees of
the Securities on the terms and substantially in the form herein provided; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer, Tyco and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the terms "generally accepted
accounting principles" means such accounting principles as are generally
accepted in the United States at the time of any computation. The words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at
the time such Person becomes a Restricted Subsidiary or (ii) assumed in
connection with the acquisition of assets by such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary or such acquisition, as the case
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 upon the enforcement of
which recourse may be had by the holder(s) thereof only to identified assets of
the Issuer, Tyco or any Subsidiary and not to the Issuer, Tyco or any Subsidiary
personally.
"Officers' Certificate" means a certificate signed by two managing
directors or by the chairman or any vice chairman of the Board of Directors or
the president or any vice president and by the treasurer or any assistant
treasurer or the secretary or any assistant secretary of the Issuer, Tyco or any
other Guarantor, as the case may be, and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 10.5.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.5, if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means a Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1.
"Outstanding", when used with reference to Securities, shall, subject
to the provisions of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and
4
<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 Issuer, Tyco or any
Subsidiary, (iii) obligations under standby letters of credit or similar
arrangements supporting the performance of a Person under a contract or
agreement in the ordinary course of business, (iv) obligations as lessee in the
ordinary course of business which are capitalized in accordance with United
States generally accepted accounting principles, (v) Indebtedness that was
Permitted Subsidiary Indebtedness at the time that it was first incurred, (vi)
Acquired Indebtedness that by its terms is not callable or redeemable prior to
its stated maturity and that remains outstanding following such time as the
Subsidiary obligated under such Acquired Indebtedness in good faith has made or
caused to be made an offer to acquire all such Indebtedness, including, without
limitation, an offer to exchange such Indebtedness for securities of the Issuer,
on terms which, in the opinion of an independent investment banking firm of
national reputation and standing, are consistent with market practices in
existence at the time for offers of a similar nature, provided that the initial
expiration date of any such offer shall not be later than the expiration of the
time period set forth in Section 3.11(c), (vii) Indebtedness outstanding on the
date of the Indenture and (viii) any renewals, extensions, substitutions,
refundings, refinancings or replacements (collectively, a "refinancing") of any
Indebtedness referred to in clause (vii) of this definition of "Permitted
Subsidiary Indebtedness" of a Subsidiary organized under a jurisdiction other
than the United States or any State thereof or the District of Columbia,
including any successive refinancings so long as the borrower under such
refinancing is such a Subsidiary and the aggregate principal amount of
Indebtedness represented thereby (or if such Indebtedness provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof, the original issue price of such
Indebtedness plus any accreted value attributable thereto since the original
issuance of such Indebtedness) is not increased by such refinancing plus the
lesser of (A) the stated amount of any premium or other payment required to be
paid in connection with such a refinancing pursuant to the terms of the
Indebtedness being refinanced or (B) the amount of premium or other payment
actually paid at such time to refinance the Indebtedness, plus, in either case,
the amount of expenses of such Subsidiary incurred in connection with such
refinancing.
"Person" means any individual, corporation, partnership,
limited liability company,
5
<PAGE>
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Principal Property" means any manufacturing, processing or assembly
plant or facility or any warehouse or distribution facility which is used by any
U.S. Subsidiary after the date hereof, other than any such plants, facilities,
warehouses or portions thereof, which in the opinion of the Board of Directors
of the Issuer, are not collectively of material importance to the total business
conducted by the Issuer and its Restricted Subsidiaries as an entirety, or
which, in each case, has a book value, on the date of the acquisition or
completion of the initial construction thereof by the Issuer, of less than 1.5%
of Consolidated Tangible Assets.
"Responsible Officer" when used with respect to the Trustee means any
vice president, the treasurer, any trust officer, any assistant trust officer,
any assistant vice president, any assistant treasurer, or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary which owns or leases a
Principal Property.
"Sale and Lease-Back Transaction" means an arrangement with any Person
providing for the leasing by the Issuer or a Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Issuer or a Restricted Subsidiary to such Person; provided,
however, that the foregoing shall not apply to any such arrangement involving a
lease for a term, including renewal rights, for not more than three years.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Significant Subsidiary Guarantor" means any one or more Guarantors
(other than Tyco) which, at the date of determination, together with its or
their respective Subsidiaries in the aggregate, (i) for the most recently
completed fiscal year of the Issuer accounted for more than 10% of the
consolidated revenues of the Issuer or (ii) at the end of such fiscal year, was
the owner (beneficial or otherwise) of more than 10% of the consolidated assets
of the Issuer, as determined in accordance with generally accepted accounting
principles and reflected on the Issuer's consolidated financial statements.
"Subsidiary" means any Person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Issuer or by one or more Subsidiaries or by the Issuer and one
or more Subsidiaries.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was
6
<PAGE>
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 the Security upon which
this Guarantee is endorsed in the amounts and at the time when due and payable
whether by declaration thereof, or otherwise, and interest on the overdue
principal and interest, if any, of such Security, if lawful, and the payment or
performance of all other obligations of the Issuer under the Indenture or the
Securities, to the holder of such Security and the Trustee, all in accordance
with and subject to the terms and limitations of such Security and Article
Thirteen of the Indenture. This Guarantee will not become effective until the
Trustee duly executes the certificate of authentication on this Security. This
Guarantee shall be governed by and construed in accordance with the laws of the
State of New York, without regard to conflict of law principles thereof.
7
<PAGE>
Dated:
TYCO INTERNATIONAL LTD.
By:
--------------------------
Name:
Title:
SECTION 2.3 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By
---------------------------
Authorized Signatory
SECTION 2.4 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors of the
Issuer and set forth in an Officers' Certificate of the Issuer, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.9, 2.10, 2.12 or 11.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate shall be determined, the
date or dates from which such interest shall accrue, the interest payment
dates on which such interest shall be payable and the record dates for the
determination of Holders to whom interest is payable;
(5) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(6) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased
8
<PAGE>
or repaid, in whole or in part, pursuant to such obligation;
(7) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(8) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in bankruptcy pursuant to Section 4.2;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and the
Depositary for Global Security or Securities;
(10) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(11) if other than the Trustee, any trustees, authenticating or paying
agents, transfer agents or registrars or any other agents with respect to
the Securities of such series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
SECTION 2.5 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities (with Guarantees endorsed thereon) of any series executed
by the Issuer to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Issuer, signed by any two managing directors or by both (a) the chairman of its
Board of Directors, or any vice chairman of its Board of Directors, or its
president or vice president and (b) its secretary or any assistant secretary or
its treasurer or any assistant treasurer, without any further action by the
Issuer. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 5.1) shall be
fully protected in relying upon:
(1) a certified copy of any resolution or resolutions of the Board of
Directors of the Issuer authorizing the action taken pursuant to the
resolution or resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of Directors
of the Issuer relating to such series, in each case certified by a
director the secretary or any assistant secretary of the Issuer;
(3) an executed supplemental indenture setting forth the form and
terms of the Securities as required pursuant to Sections 2.1 and 2.4
respectively, if any;
(4) an Officers' Certificate of the Issuer setting forth the form and
terms of the Securities as required pursuant to Section 2.1 and 2.4,
respectively and prepared in accordance with Section 10.5;
9
<PAGE>
(5) an Opinion of Counsel, prepared in accordance with Section 10.5,
to the effect that
(a) that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
of the Issuer or by a supplemental indenture as permitted by Sections
2.1 and 2.4 in conformity with the provisions of this Indenture;
(b) that such Securities, when authenticated in accordance with
the terms of this Indenture and delivered by the Trustee and issued by
and delivered by or to the order of the Issuer, against payment
therefor, in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding obligations
of the Issuer;
(c) that all laws and requirements in respect of the execution
and delivery by the Issuer of the Securities have been complied with;
and
(d) covering such other matters as the Trustee may reasonably
request.
Notwithstanding the provisions of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not
be necessary to deliver an Opinion of Counsel otherwise required pursuant to
such preceding paragraph at or prior to the authentication of such Security of
such series if an Opinion of Counsel is delivered at or prior to the
authentication upon original issuance of the first Security of such series to be
issued and reasonably contemplates such authentication of each such Security.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith shall determine that such action would expose the
Trustee to personal liability to existing Holders.
SECTION 2.6 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by any two managing directors or by both (a) the chairman
of its Board of Directors or any vice chairman of its Board of Directors or its
president or any vice president and (b) the its treasurer or any assistant
treasurer or its secretary or any assistant secretary, which may, but need not,
be attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any managing director or officer of the Issuer who shall have
signed any of the Securities shall cease to be such managing director or officer
before the Security so signed shall be authenticated and delivered by the
Trustee or disposed of by the Issuer, such Security nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Security had not ceased to be such officer of the Issuer; and any Security may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security, shall be the proper managing directors or officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such Person was not such a managing director or an officer.
10
<PAGE>
SECTION 2.7 Certificate of Authentication. Only such Securities (and
Guarantees endorsed thereon) as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized signatories, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the holder is entitled to
the benefits of this Indenture.
SECTION 2.8 Denomination and Date of Securities; Payments of Interest.
The Securities shall be issuable as registered securities without coupons and in
denominations as shall be specified as contemplated by Section 2.4. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.4.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall not
be less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.9 Registration, Transfer and Exchange. The Issuer will keep
or cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.2 a Security register for each series of Securities in
which, subject to such reasonable regulations as it may prescribe, it will
register, and will register the transfer of, Securities as in this Article
provided. Such register shall be in written form in the English language or in
any other form capable of being converted into such form within a reasonable
time. At all reasonable times such Security register shall be open for
inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount, and the Issuer shall record or cause to be recorded
the transfer in the Security register or registers.
11
<PAGE>
Any Security or Securities of any series may be exchanged for a
Security or Securities of the same series in other authorized denominations, in
an equal aggregate principal amount. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in Section 3.2, and the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Security or
Securities of the same series which the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee, duly executed by
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed, or (b) any Securities selected, called or being called for redemption
except, in the case of any Security where public notice has been given that such
Security is to be redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
None of the Issuer, any Guarantor, the Trustee or any Paying Agent
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial interests.
SECTION 2.10 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be destroyed, lost or stolen, the Issuer in its discretion may
execute, and upon the written request of any officer of the Issuer, the Trustee
shall authenticate and deliver, a new Security of the same series, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substitute
Security shall furnish to the Issuer, any Guarantor and to the Trustee and any
agent of the Issuer, such Guarantor or the Trustee such security or indemnity as
may be required by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee and any Guarantor) connected therewith. In case
any security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the
12
<PAGE>
applicant for such payment shall furnish to the Issuer, the Guarantors and to
the Trustee and any agent of the Issuer, the Guarantors or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.11 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be canceled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of canceled Securities held by it in
accordance with its policy of disposal or, upon the written request of the
Issuer, deliver such canceled Securities to the Issuer. If the Issuer shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.12 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute, the Guarantors
shall endorse and the Trustee shall authenticate and deliver temporary
Securities for such series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee). Temporary
Securities of any series shall be issuable as registered Securities without
coupons, of any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee. Temporary
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be executed by the Issuer,
endorsed by the Guarantors and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. Without unreasonable delay the issuer shall execute and
shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.2, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
13
<PAGE>
SECTION 2.13 Securities Issuable in the Form of a Global Security. (a)
If the Issuer shall establish pursuant to Section 2.4 that the Securities of a
particular series are to be issued in whole or in part in the form of one or
more Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with Section 2.5 and the Issuer order delivered to the Trustee
thereunder, authenticate and deliver, such Global Security or Securities, which
(i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the Outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be registered in
the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction and (iv) shall bear a legend substantially to
the following effect: "Unless and until it is exchanged in whole or in part for
the individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary."
(b) Notwithstanding any other provision of this Section 2.13 or of
Section 2.9, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for individual Securities, a Global
Security may be transferred, in whole but not in part and in the manner provided
in Section 2.9, only to another nominee of the Depositary for such Global
Security, or by the nominee of the Depositary to the Depositary, or to a
successor Depositary for such Global Security selected or approved by the Issuer
or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies
the Issuer that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for the Securities for such
series shall no longer be eligible or in good standing under the Securities
Exchange Act of 1934, or other applicable statute or regulation, the Issuer
shall appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the Issuer
within 90 days after the Issuer receives notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.4(9) shall no longer
be effective with respect to such Global Security and the Issuer will execute,
and the Trustee, upon receipt of an Issuer order for the authentication and
delivery of individual Securities of such series in exchange for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in a definitive form in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security.
(ii) The Issuer may at any time and in its sole discretion determine
that the Securities of any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Issuer will execute, and the Trustee, upon receipt
of an Issuer order for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and
terms in a definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities representing such series
in exchange for such Global Security or Securities.
(iii) If specified by the Issuer pursuant to Section 2.4 with respect
to Securities issued or issuable in the form of a Global Security, the
Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the Issuer
and such Depositary. Thereupon the Issuer shall execute, and the Trustee shall
authenticate and
14
<PAGE>
deliver, without service charge, (1) to each Person specified by such Depositary
a new Security or Securities of the same series of like tenor and terms and of
any authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such person's beneficial interest in the
Global Security; and (2) to such Depositary a new Global Security of like tenor
and terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Issuer will execute, the Guarantors will endorse and the Trustee
will authenticate and deliver individual Securities in definitive registered
form in authorized denominations. Upon the exchange of a Global Security for
individual Securities, such Global Security shall be canceled by the Trustee.
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered.
SECTION 2.14 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
---------------------------------------
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each installment of interest on
the Securities of any series may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will maintain in The Borough of
Manhattan, The City of New York for each series: an office or agency (a) where
the Securities may be presented for payment, (b) where the Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided and (c) where notices and demands to or upon the Issuer in respect of
the Securities or of this Indenture may be served. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Unless otherwise specified in accordance with
Section 2.4, the Issuer hereby initially designates the Corporate Trust Office
of The Bank of New York, 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.
15
<PAGE>
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 5.9, a Trustee, so that
there shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agent. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section.
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the failure
referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 9.3 and 9.4.
SECTION 3.5 Certificate of the Issuer and the Guarantors. So long as
any of the Securities remain outstanding, the Issuer, Tyco and any other
Guarantor will furnish to the Trustee on or before March 31 in each year
(beginning with 1999) a brief certificate (which need not comply with Section
10.5) executed by the principal executive, financial or accounting officer of
each of the Issuer, Tyco and such Guarantor on their respective behalf as to his
or her knowledge of the Issuer's, Tyco's and such Guarantor's, as the case may
be, compliance with all covenants and agreements under the Indenture required to
be complied with by the Issuer, Tyco and such Guarantor, respectively, (such
compliance to be determined without regard to any
16
<PAGE>
period of grace or requirement of notice provided under the Indenture). Such
certificate need not include a reference to any non-compliance that has been
fully cured prior to the date as of which such certificate speaks.
SECTION 3.6 Securityholders Lists. If and so long as the Trustee shall
not be the Security registrar for the Securities of any series, the Issuer will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.4 for
non-interest bearing securities in each year, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 3.7 Reports by the Issuer and Tyco. So long as any of the
Securities remain outstanding, the Issuer and Tyco each covenants to file with
the Trustee, within 15 days after the Issuer and Tyco are required to file the
same with the Commission, copies of the annual reports and of the information,
documents, and other reports which the Issuer and Tyco may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; provided, however, that the Issuer and Tyco shall have no
obligation to file such reports with the Trustee as long as no Securities of any
series are Outstanding.
SECTION 3.8 Reports by the Trustee. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before July 15 in each year following the date hereof, so long as any
Securities are outstanding hereunder, and shall be dated as of a date convenient
to the Trustee no more than 60 nor less than 45 days prior thereto.
SECTION 3.9 Limitations on Liens. After the date hereof and so long as
any Securities are Outstanding (but subject to defeasance, as provided in the
Indenture), the Issuer will not, and will not permit any Restricted Subsidiary
to, issue, assume or guarantee any Indebtedness which is secured by a mortgage,
pledge, security interest, lien or encumbrance (each a "lien") upon any
Principal Property, or any shares of stock of or Indebtedness issued by any
Restricted Subsidiary, whether now owned or hereafter acquired, without
effectively providing that, for so long as such lien shall continue in existence
with respect to such secured Indebtedness, the Securities (together with, if the
Issuer shall so determine, any other Indebtedness of the Issuer ranking equally
with the Securities, it being understood that for purposes hereof, Indebtedness
which is secured by a lien and Indebtedness which is not so secured shall not,
solely by reason of such lien, be deemed to be of different ranking) shall be
equally and ratably secured by a lien ranking ratably with or equal to (or at
the Issuer's option prior to) such secured Indebtedness; provided, however, that
the foregoing covenant shall not apply to:
(a) liens existing on the date the Securities of the subject series
are issued;
(b) liens on the stock, assets or Indebtedness of a Person existing at
the same time such Person becomes a Restricted Subsidiary unless created in
contemplation of such Restricted Subsidiary becoming such;
(c) liens on any assets or Indebtedness of a Person existing at the
time such Person is merged into the Issuer or a Restricted Subsidiary or at the
time of a purchase, lease or other acquisition of the assets of a corporation or
firm as an entirety or substantially as an entirety by the Issuer or any
Restricted Subsidiary;
17
<PAGE>
(d) liens on any Principal Property existing at the time of
acquisition thereof by the Issuer or any Restricted Subsidiary, or liens to
secure the payment of the purchase price of such Principal Property by the
Issuer or any Restricted Subsidiary, or to secure any Indebtedness incurred,
assumed or guaranteed by the Issuer or a Restricted Subsidiary for the purpose
of financing all or any part of the purchase price of such Principal Property or
improvements or construction thereon, which Indebtedness is incurred, assumed or
guaranteed prior to, at the time of, or within one year after such acquisition
(or in the case of real property, completion of such improvement or construction
or commencement of full operation of such property, whichever is later);
provided, however, that in the case of any such acquisition, construction or
improvement, the lien shall not apply to any Principal Property theretofore
owned by the Issuer or a Restricted Subsidiary, other than the Principal
Property so acquired, constructed or improved;
(e) liens securing Indebtedness owing by any Restricted Subsidiary to
the Issuer, Tyco or a Subsidiary or by the Issuer to Tyco;
(f) liens in favor of the United States or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract, statute, rule or regulation or to secure any
Indebtedness incurred or guaranteed for the purpose of financing all or any part
of the purchase price (or, in the case of real property, the cost of
construction or improvement) of the Principal Property subject to such liens
(including but not limited to, liens incurred in connection with pollution
control, industrial revenue or similar financings);
(g) pledges, liens or deposits under worker's compensation or similar
legislation, and liens thereunder which are not currently dischargeable, or in
connection with bids, tenders, contracts (other than for the payment of money)
or leases to which the Issuer or any Restricted Subsidiary is a party, or to
secure the public or statutory obligations of the Issuer or any Restricted
Subsidiary, or in connection with obtaining or maintaining self-insurance, or to
obtain the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar matters, or
to secure surety, performance, appeal or customs bonds to which the Issuer or
any Restricted Subsidiary is a party, or in litigation or other proceedings in
connection with the matters heretofore referred to in this clause, such as, but
not limited to, interpleader proceedings, and other similar pledges, liens or
deposits made or incurred in the ordinary course of business;
(h) liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate proceedings,
including liens arising out of judgments or awards against the Issuer or any
Restricted Subsidiary with respect to which the Issuer or such Restricted
Subsidiary is in good faith prosecuting an appeal or proceedings for review or
for which the time to make an appeal has not yet expired; or final unappealable
judgment liens which are satisfied within 15 days of the date of judgment; or
liens incurred by the Issuer or any Restricted Subsidiary for the purpose of
obtaining a stay or discharge in the course of any litigation or other
proceeding to which the Issuer or such Restricted Subsidiary is a party;
(i) liens for taxes or assessments or governmental charges or levies
not yet due or delinquent; or which can thereafter be paid without penalty, or
which are being contested in good faith by appropriate proceedings; landlord's
liens on property held under lease; and any other liens or charges incidental to
the conduct of the business of the Issuer or any Restricted Subsidiary, or the
ownership of their respective assets, which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit and which do not,
in the
18
<PAGE>
opinion of the Board of Directors of the Issuer, materially impair the
use of such assets in the operation of the business of the Issuer or such
Restricted Subsidiary or the value of such Principal Property for the purposes
of such business;
(j) liens to secure the Issuer's or any Restricted Subsidiary's
obligations under agreements with respect to spot, forward, future and option
transactions, entered into in the ordinary course of business;
(k) liens not permitted by the foregoing clauses (a) to (j),
inclusive, if at the time of, and after giving effect to, the creation or
assumption of any such lien, the aggregate amount of all outstanding
Indebtedness of the Issuer and its Restricted Subsidiaries (without duplication)
secured by all such liens not so permitted by the foregoing clauses (a) through
(j), inclusive, together with the Attributable Debt in respect of Sale and
Lease-Back Transactions permitted by paragraph (a) under Section 3.10 do not
exceed the greater of $100,000,000 and 10% of Consolidated Net Worth; and
(l) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part, of any lien referred to in the
foregoing clauses (a) to (k), inclusive; provided, however, that the principal
amount of Indebtedness secured thereby unless otherwise excepted under clauses
(a) through (k) shall not exceed the principal amount of Indebtedness so secured
at the time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the assets (or any
replacements therefor) which secured the lien so extended, renewed or replaced
(plus improvements and construction on real property).
SECTION 3.10 Limitation on Sale and Lease-Back Transactions. The
Issuer will not, and will not permit any Restricted Subsidiary to, enter into
any Sale and Lease-Back Transaction unless:
(a) the Issuer or such Restricted Subsidiary would, at the time of
entering into a Sale and Lease-Back Transaction, be entitled to incur
Indebtedness secured by a lien on the Principal Property to be leased in an
amount at least equal to the Attributable Debt in respect of such Sale and
Lease-Back Transaction, without equally and ratably securing the Securities
pursuant to Section 3.9; or
(b) the direct or indirect proceeds of the sale of the Principal
Property to be leased are at least equal to the fair value of such Principal
Property (as determined by the Issuer's Board of Directors) and an amount equal
to the net proceeds from the sale of the property or assets so leased are
applied, within 180 days of the effective date of any such Sale and Lease-Back
Transaction, to the purchase or acquisition (or, in the case of real property,
commencement of the construction) of property or assets or to the retirement
(other than at maturity or pursuant to a mandatory sinking fund or mandatory
redemption provision) of Securities, or of Funded Indebtedness of the Issuer or
a consolidated Subsidiary ranking on a parity with or senior to the Securities;
provided that there shall be credited to the amount of net worth proceeds
required to be applied pursuant to this clause (b) an amount equal to the sum of
(i) the principal amount of Securities delivered within 180 days of the
effective date of such Sale and Lease-Back Transaction to the Trustee for
retirement and cancellation and (ii) the principal amount of other Funded
Indebtedness voluntarily retired by the Issuer within such 180-day period,
excluding retirements of Securities and other Funded Indebtedness as a result of
conversions or pursuant to mandatory sinking fund or mandatory prepayment
provisions.
19
<PAGE>
SECTION 3.11 Limitation on Indebtedness of Subsidiaries. (a) The
Issuer will not cause or permit any Subsidiary (which is not a Guarantor),
directly or indirectly, to create, incur, assume, guarantee or otherwise in any
manner become liable for the payment of or otherwise incur (collectively,
"incur"), any Indebtedness (including any Acquired Indebtedness but excluding
any Permitted Subsidiary Indebtedness) unless such Subsidiary simultaneously
executes and delivers a supplemental indenture to the Indenture providing for a
Guarantee of the Securities as provided in Section 3.14.
(b) Notwithstanding the foregoing, any Guarantee by a Subsidiary of
the Securities shall provide by its terms that it (and all liens securing the
same) shall be automatically and unconditionally released and discharged upon
(i) any sale, exchange or transfer, to any Person not an Affiliate of the
Issuer, of all of the Issuer's equity interests in, or all or substantially all
the assets of, such Subsidiary, which transaction is in compliance with the
terms of this Indenture and such Subsidiary is released from all guarantees, if
any, by it of other Indebtedness of the Issuer or any Subsidiaries, (ii) the
payment in full of all obligations under the Indebtedness giving rise to such
Guarantee and (iii) with respect to Indebtedness described in clause (a) above
constituting guarantees, the release by the holders of such Indebtedness of the
guarantee by such Subsidiary (including any deemed release upon payment in full
of all obligations under such Indebtedness), at such time as (A) no other
Indebtedness (other than Permitted Subsidiary Indebtedness) has been guaranteed
by such Subsidiary, as the case may be, or (B) the holders of all such other
Indebtedness which is guaranteed by such Subsidiary also release the guarantee
by such Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness).
(c) For purposes of this Section 3.11, any Acquired Indebtedness shall
not be deemed to have been incurred until 180 days from the date (A) the Person
obligated on such Acquired Indebtedness becomes a Subsidiary or (B) the
acquisition of assets in connection with which such Acquired Indebtedness was
assumed is consummated.
SECTION 3.12 Notice to Trustee. The Issuer, Tyco or any other
Guarantor shall provide written notice to the Trustee within 30 days of the
occurrence of any Event of Default under Section 4.1.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any installment of interest upon or any
Additional Amounts in respect of any of the Securities of such series as
and when the same shall become due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the
20
<PAGE>
Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of
such series; or
(d) default in the performance, or breach, of any covenant or
agreement of the Issuer, Tyco or any other Guarantor in respect of the
Securities of such series and related Guarantees (other than a covenant or
agreement in respect of the Securities of such series and related
Guarantees a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 90 days after the date on which there has been
given, by registered or certified mail, to the Issuer by the Trustee or to
the Issuer and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of all series affected thereby, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(e) an event of default, as defined in any indenture, including this
Indenture, or instrument evidencing or under which the Issuer, Tyco or any
other Guarantor on the date any determination shall be made under this
clause (e), shall have outstanding at least $50,000,000 aggregate principal
amount of Indebtedness for borrowed money (other than Non-Recourse
Indebtedness), shall happen and be continuing and such event of default
shall involve the failure to pay the principal of or interest on such
Indebtedness (or any part thereof) on the final maturity date thereof after
the expiration of any applicable grace period with respect thereto, or such
Indebtedness shall have been accelerated so that the same shall be or
become due and payable prior to the date on which the same would otherwise
have become due and payable, and such acceleration shall not be rescinded
or annulled within ten Business Days after notice thereof shall have been
given to the Issuer, Tyco or such Guarantor, as the case may be, by the
Trustee (if such event be known to it), or to the Issuer, Tyco or such
Guarantor, as the case may be, and the Trustee by the Holders of at least
25% in aggregate principal amount of all of the Securities at the time
Outstanding (treated as one class); provided that, if such event of default
under such indenture or instrument shall be remedied or cured by the
Issuer, Tyco or such Guarantor, as the case may be, or waived by the
requisite holders of such indebtedness, then the Event of Default hereunder
by reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the Trustee
or any of the Securityholders, and provided further, however, that subject
to the provisions of Sections 5.1 and 5.2, the Trustee shall not be charged
with knowledge of any such event of default unless written notice thereof
shall have been given to the Trustee by the Issuer, Tyco or such Guarantor,
as the case may be, by the holder or an agent of the holder of any such
Indebtedness, by the trustee then acting under any indenture or other
instrument under which such default shall have occurred, or by the Holders
of not less than 25% in the aggregate principal amount of the Securities at
the time Outstanding (treated as one class);
(f) any Guarantee shall for any reason cease to be, or shall for any
reason be asserted in writing by any Guarantor or the Issuer not to be in
full force and effect and enforceable in accordance with its terms except
to the extent contemplated by the Indenture and any such Guarantee;
(g) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer, Tyco or any Significant
Subsidiary Guarantor in an
21
<PAGE>
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer, Tyco or such Significant Subsidiary Guarantor or
for any substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(h) the Issuer, Tyco or any Significant Subsidiary Guarantor shall
commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to
the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Issuer, Tyco or such Significant Subsidiary Guarantor or for any
substantial part of its property, or make any general assignment for the
benefit of creditors; or
(i) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of
Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (d), (f) or (i) above
(if the Event of Default under clause (d) or (i), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (d) or
(i) (if the Event of Default under clause (d) or (i), as the case may be, is
with respect to all series of Securities then Outstanding), (e), (g) or (h)
occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Issuer (and the to Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then outstanding and
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer, Tyco or any other Guarantor shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of
such series (or of all the Securities, as the case may be) which shall have
become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the same rate
22
<PAGE>
as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series (or at the
respective rates of interest or Yields to Maturity of all the Securities, as the
case may be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Indenture, other than the non-payment
of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein -- then
and in every such case the Holders of a majority in aggregate principal amount
of all the Securities of such series, each series voting as a separate class (or
of all the Securities, as the case may be, voting as a single class), then
outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to such series (or with respect to all the Securities, as
the case may be) and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. Each of the Issuer, Tyco and any other Guarantor covenants that (a) in
case default shall be made in the payment of any installment of interest on any
of the Securities of any series when such interest shall have become due and
payable, and such default shall have continued for a period of 30 days or (b) in
case default shall be made in the payment of all or any part of the principal of
any of the Securities of any series when the same shall have become due and
payable, whether upon maturity of the Securities of such series or upon any
redemption or by declaration or otherwise -- then upon demand of the Trustee,
the Issuer, Tyco and such Guarantor will pay to the Trustee for the benefit of
the Holders of the Securities of such series the whole amount that then shall
have become due and payable on all Securities of series for principal or
interest, as the case may be (with interest to the date of such payment upon the
overdue principal and to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series); and in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the Holders,
whether or not the principal of and interest on the Securities of such series be
overdue.
In case the Issuer, Tyco or any other Guarantor shall fail forthwith
to pay such amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the
23
<PAGE>
collection of the sums so due and unpaid, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Issuer, Tyco, such Guarantor or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer, Tyco, such Guarantor or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer,
Tyco, any other Guarantor or any other obligor upon the Securities under Title
11 of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer, Tyco
or such Guarantor or their respective property or such other obligor or its
property, or in case of any other comparable judicial proceedings relative to
the Issuer, Tyco, such Guarantor or other obligor upon the Securities of any
series, or to the creditors or property of the Issuer, Tyco, such Guarantor or
such other obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer Tyco, such Guarantor or
other obligor upon the Securities of any series, or to the creditors or
property of the Issuer Tyco, such Guarantor or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith and all other amounts
due to the Trustee or any predecessor Trustee pursuant to Section 5.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or
24
<PAGE>
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof in any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities in respect of which such action was
taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: in case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or Yield to Maturity,
25
<PAGE>
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.6 Limitations on Suits by Securityholders. No Holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of such series
then outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
26
<PAGE>
SECTION 4.7 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security to receive
payment of the principal of and interest on such Security on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 4.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 4.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time Outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 5.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive any past default or Event of Default described in clause (d) or (i)
of Section 4.1 which relates to less than all series of Securities then
Outstanding, except a default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each
27
<PAGE>
Holder affected as provided in Section 7.2. Prior to a declaration of
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of Securities of a majority in principal amount of all
the Securities then Outstanding (voting as one class) may on behalf of all
Holders waive any past default or Event of Default referred to in said clause
(d) or (i) which relates to all series of Securities then Outstanding, or
described in clause (e), (g) or (h) of Section 4.1, except a default in respect
of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Security affected as provided in Section 7.2.
In the case of any such waiver, the Issuer, Tyco, any other Guarantor, the
Trustee and the Holders of the Securities of each series affected shall be
restored to their former positions and rights hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall give to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to the Trustee which have occurred with
respect to such series, such notice to be transmitted within 90 days after the
occurrence thereof, unless such defaults shall have been cured before the giving
of such notice (the term "default" or "defaults" for the purposes of this
Section being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default); provided
that, except in the case of default in the payment of the principal of or
interest on any of the Securities of such series, or in the payment of any
sinking or purchase fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clauses (d) or (i) of Section 4.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clauses (d) or (i) (if the suit
relates to all the Securities then Outstanding(treated as one class), (e), (g)
or (h) of Section 4.1, 10% in aggregate principal amount of all Securities
Outstanding (treated as one class), or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security.
28
<PAGE>
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 4.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity or security against
29
<PAGE>
such liability is not reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and subject
to Sections 315 and 316 of the Trust Indenture Act of 1939. Whether or not
therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 5.2 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by any managing director or the secretary or an
assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion of counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing so
to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation reasonably requested by the Holders as aforesaid shall
be paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand; and
30
<PAGE>
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
(h) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities, this Indenture or
other information related to the Securities.
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer, Tyco, any other Guarantor or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer, Tyco or such
Guarantor and receive, collect, hold and retain collections from the Issuer,
Tyco or such Guarantor with the same rights it would have if it were not the
Trustee or such agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the provisions of
Section 9.8 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except to the extent
any such expense, disbursement or advance may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee, its agents and each
predecessor trustee for, and to hold it harmless against, any loss, liability or
expense arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and the performance of its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises, except to the extent such
loss liability or expense is due to the negligence or bad faith of the Trustee,
agent or such predecessor trustee. The obligations of the Issuer under this
Section to compensate and indemnify the Trustee, its agents and each predecessor
trustee and to pay or reimburse the Trustee and each predecessor trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
Such additional
31
<PAGE>
indebtedness shall be a lien senior to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Securities, and
the Securities are hereby subordinated to such lien.
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 5.1 and 5.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.8 Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation or
national banking association having a combined capital and surplus of at least
$50,000,000, and which is eligible in accordance with the provisions of Section
310(a) of the Trust Indenture Act of 1939. If such corporation or national
banking association publishes reports of condition at least annually, pursuant
to law or to the requirements of a Federal, State or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published.
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer and by mailing notice thereof by first class
mail to Holders of the applicable series of Securities at their last addresses
as they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors of the Issuer, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 4.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the Issuer
or by any Securityholder; or
32
<PAGE>
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.9 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.10.
SECTION 5.10 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.9 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 9.8,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 5.6.
If a successor trustee is appointed with respect to the securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
securities of
33
<PAGE>
any series as to which the predecessor Trustee is not retiring shall continue to
be vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.9. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Issuer.
SECTION 5.11 Appointment of Co-Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of any trust created under this Indenture may at the time be
located, the Trustee shall have the power and may execute and deliver all
instruments necessary to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees and to vest in such Person
or Persons, in such capacity and for the benefit of the Holders, such powers,
duties, obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 5.13 and no notice
to Holders of the appointment of any co-trustee or separate trustee shall be
required under Section 5.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to any trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this
34
<PAGE>
Indenture and the conditions of this Article Five. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 5.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation or national banking association into which
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation or national banking association shall be eligible
under the provisions of Section 5.8, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor trustee or to authenticate Securities of any series in the
name of any predecessor trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
------------------------------
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.
35
<PAGE>
SECTION 6.2 Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.1 and 5.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of
Securities shall be proved by the Security register or by a certificate of the
registrar thereof. The Issuer may set a record date for purposes of determining
the identity of holders of Securities of any series entitled to vote or consent
to any action referred to in Section 6.1, which record date may be set at any
time or from time to time by notice to the Trustee, for any date or dates (in
the case of any adjournment or reconsideration) not more than 60 days nor less
than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, only Holders of
Securities of such series of record on such record date shall be entitled to so
vote or give such consent or revoke such vote or consent.
SECTION 6.3 Holders to be Treated as Owners. The Issuer, Tyco, any
other Guarantor, the Trustee and any agent of the Issuer, Tyco, such Guarantor
or the Trustee may deem and treat the Person in whose name any Security shall be
registered upon the Security register for such series as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Security and for all other purposes; and none
of the Issuer, Tyco, such Guarantor or the Trustee or any agent of the Issuer,
Tyco, such Guarantor or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such Person, or upon his order, shall
be valid, and, to the extent of the sum or sums so paid, effectual to satisfy
and discharge the liability for moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer, Tyco, any other Guarantor, or any other obligor on the Securities with
respect to which such determination is being made or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, Tyco, such Guarantor or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer, Tyco, such Guarantor or any other obligor upon the Securities
or any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, Tyco, such Guarantor or any
other obligor on the Securities. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer, Tyco or such Guarantor shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer, Tyco or such Guarantor to be owned or held by or for the account of
any of the above-described Persons; and, subject to Sections 5.1 and 5.2, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time prior to
(but
36
<PAGE>
not after) the evidencing to the Trustee, as provided in Section 6.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, Tyco, any other Guarantor, the
Trustee and the Holders of all the Securities affected by such action.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, Tyco and any other Guarantor when authorized by
resolutions of their respective Board of Directors, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer or
any Guarantor, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer or any Guarantor such
further covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection of the
Holders of Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set
forth; provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors of the Issuer may deem necessary or
37
<PAGE>
desirable and which shall not adversely affect the interests of the Holders
of the Securities in any material respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.4;
(f) to add a Guarantor pursuant to the provisions of Sections 3.11 and
13.4; and
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 5.10.
The Trustee is hereby authorized to join with the Issuer, Tyco and any
other Guarantor in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Six) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, Tyco and any other Guarantor, when authorized by resolutions
of their respective Boards of Directors, and the Trustee may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
series; provided, that no such supplemental indenture shall (a) extend the final
maturity of any Security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.1 or the amount
thereof provable in bankruptcy pursuant to Section 4.2, or impair or affect the
right of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so affected,
or (b) reduce the aforesaid percentage of Securities of any series, the consent
of the Holders of which is required for any such supplemental indenture, without
the consent of the Holders of each Security so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors certified by a managing director or the secretary or
an assistant secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Securityholders as aforesaid and other documents, if any, required by
Section 6.1, the Trustee shall join with the Issuer, Tyco and any other
Guarantor in the execution of such supplemental indenture unless such
supplemental indenture affects the
38
<PAGE>
Trustee's own rights, duties or immunities under this Indenture, or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer, Tyco, any other Guarantor
and the Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Issuer shall mail a notice thereof by first class mail to the
Holders of Securities of each series affected thereby at their addresses as they
shall appear on the registry books of the Issuer, setting forth in general terms
the substance of such supplemental indenture. Any failure of the Issuer to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, Tyco, any other Guarantor and
the Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 5.1 and 5.2, may receive an Officers' Certificate and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Seven complies with the applicable provisions
of this Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken at any such meeting. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors of the Issuer, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Issuer, Tyco and any other Guarantor, and authenticated by the Trustee and
delivered in exchange for the Securities of such series then outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer and Guarantors May Consolidate, etc., on Certain
Terms. Each of the Issuer, Tyco and any other Guarantors, if any, covenants that
it will not merge or consolidate with any other Person or sell or convey all or
substantially all of its assets to any Person, unless (i) either the Issuer or
such Guarantor, as the case may be, shall be the continuing entity, or the
successor entity or the Person which acquires by sale or conveyance
substantially all the assets of the Issuer or such Guarantor, as the case may be
(if other than the Issuer or such Guarantor, as the case may be) shall expressly
assume the due and punctual payment of the principal of and interest on all the
Securities or the obligations under the Guarantees, as the case
39
<PAGE>
may be, according to their tenor, and the due and punctual performance and
observance of all of the covenants and agreements of this Indenture to be
performed or observed by the Issuer or such Guarantor, as the case may be, by
supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such corporation, and (ii) the Issuer or such Guarantor, as the
case may be, or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or agreement.
SECTION 8.2 Successor Entity Substituted. In case of any such
consolidation, merger, sale or conveyance in which the Issuer or any Guarantor,
as the case may be, is not the continuing entity, and following such an
assumption by the successor entity, such successor entity shall succeed to and
be substituted for the Issuer or such Guarantor, as the case may be, with the
same effect as if it had been named herein. Such successor entity may cause to
be signed, and may issue either in its own name or in the name of the Issuer or
such Guarantor, as the case may be, prior to such succession any or all of the
Securities or Guarantees as the case may be, issuable hereunder which
theretofore shall not have been signed by the Issuer or such Guarantor, as the
case may be, and delivered to the Trustee; and, upon the order of such successor
entity instead of the Issuer or such Guarantor, as the case may be, and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities or Guarantees, as
the case may be, which previously shall have been signed and delivered by the
officers of the Issuer or such Guarantor, as the case may be, to the Trustee for
authentication, and any Securities or Guarantees, as the case may be, which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities or Guarantees, as the case may
be, so issued shall in all respects have the same legal rank and benefit under
this Indenture as the Securities or Guarantees, as the case may be, theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Securities or such Guarantees, as the case may be, had been issued
at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities or Guarantees thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Issuer or any Guarantor or any successor entity which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture, the
Securities and any Guarantee and may be liquidated and dissolved.
SECTION 8.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 5.1 and 5.2, may receive an Opinion of Counsel, prepared
in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
SECTION 8.4 Exception Applicable to Certain Guarantors. The provisions
of this Article shall not apply to a merger, consolidation, sale or conveyance
of a Guarantor other than Tyco, if, in connection with such merger,
consolidation, sale or conveyance, the Guarantee of such Guarantor is released
and discharged in accordance with Section 3.11(b).
40
<PAGE>
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time
(a) the Issuer or any Guarantor shall have paid or caused to be paid the
principal of and interest on all the Securities of any series outstanding
hereunder (other than Securities of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.10) as
and when the same shall have become due and payable, or (b) the Issuer shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.10) or (c) (i) all the Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or may,
at the option of the Issuer, be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (ii) the Issuer or any Guarantor shall have irrevocably deposited or caused
to be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Issuer in
accordance with Section 9.8) or direct obligations of the United States of
America, backed by its full faith and credit, or a combination of cash and such
direct obligations, maturing as to principal and interest in such amounts and at
such times as will insure the availability of cash sufficient to pay at maturity
or upon redemption all Securities of such series (other than any Securities of
such series which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.10) not theretofore delivered to
the Trustee for cancellation, including principal and interest due or to become
due on or prior to such date of maturity as the case may be, and if, in any such
case, the Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer with respect to Securities of such series, then this
Indenture shall cease to be of further effect with respect to Securities of such
series (except as to (i) rights of registration of transfer and exchange of
Securities of such series, and the Issuer's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of Holders to receive payments of principal thereof and
interest thereon upon the original stated due dates therefor (but not upon
acceleration) and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, in each case solely out of property so deposited with the
Trustee, and (iv) the rights, obligations and immunities of the Trustee
hereunder, and the Trustee, on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such series; provided, that the
rights of Holders of the Securities to receive amounts in respect of principal
of and interest on the Securities held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Issuer agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any, services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
SECTION 9.2 Issuer's Option to Effect Defeasance or Covenant
Defeasance. In addition to discharge of the Indenture pursuant to Section 9.1,
with respect to any series of Securities where the exact amount of principal and
interest due on which can be determined at the time of making the deposit
referred to in Section 9.5(a), the Issuer may at its option by resolution of its
Board of Directors elect at any time either (a) to effect a defeasance (as
defined in Section 9.3) of the Securities of such series under Section 9.3 or
(b) to effect a covenant defeasance (as defined in Section 9.4) of the
Securities of such series under Section 9.4, in each case upon
41
<PAGE>
compliance with the applicable conditions set forth below in this Article Nine.
SECTION 9.3 Defeasance and Discharge. Upon the Issuer's exercise of
the option set forth in clause (a) of Section 9.2 with respect to the Securities
of a series, the Issuer and each Guarantor shall be deemed to have been
discharged from its obligations with respect to the Securities of such series on
and after the date the conditions precedent set forth in Section 9.5 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
Indebtedness represented by the Securities of such series and the Issuer and
each Guarantor shall be deemed to have satisfied all their respective other
obligations under the Securities of such series and under this Indenture
relating to the Securities of such series (and the Trustee, at the expense of
the Issuer, shall execute proper instruments acknowledging the same), except
for, (i) rights of registration of transfer and exchange of Securities of such
series, and the Issuer's right of optional redemption, if any, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Holders to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, in
each case solely from the trust funds described in Section 9.5(a); and (iv) the
rights, obligations and immunities of the Trustee hereunder. Subject to
compliance with this Article Nine, the Issuer may exercise its option under this
Section 9.3 notwithstanding the prior exercise of its option under Section 9.4
with respect to the Securities of such series.
SECTION 9.4 Covenant Defeasance. Upon the Issuer's exercise of the
option set forth in clause (b) of Section 9.2 with respect to the Securities of
a series, the Issuer and each Guarantor shall be released from their respective
obligations under Sections 3.9, 3.10, 3.11, 3.12 and Article 8 with respect to
the Securities of such series on and after the date the conditions precedent set
forth in Section 9.5 are satisfied (hereinafter, "covenant defeasance"). For
this purpose, such covenant defeasance means that, with respect to the
Securities of such series, the Issuer and each Guarantor may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section 4.1,
but the remainder of this Indenture and such Securities shall be unaffected
thereby.
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions precedent to the application of either Section
9.3 or Section 9.4 to the Securities of a series:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds
in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the holders of the Securities of such series (i) money in an
amount, or (ii) direct obligations of the United States of America, backed
by its full faith and credit, which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment in
respect of the Securities of such series, money in an amount, or (iii) a
combination thereof, sufficient (without consideration of any reinvestment
of such money, principal or interest), in the opinion of a nationally
recognized firm of independent public accountants or a nationally
recognized investment banking firm expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (A) the principal of and
interest on all Securities of such series on each date such principal or
interest is due and payable and (B)
42
<PAGE>
any mandatory sinking fund payments on the dates on which such payments are
due and payable in accordance with the terms of this Indenture and the
Securities of such series. Before such a deposit the Issuer may make
arrangements satisfactory to the Trustee for the redemption of the
Securities of such series at a future date or dates in accordance with
Article Eleven, if applicable to the Securities of such series, which shall
be given effect in applying the foregoing.
(b) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (i) on the date of such
deposit or (ii) insofar as Subsections 4.1(g) and 4.1(h) are concerned, at
any time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the date following the expiration of the
longest preference period applicable to the Issuer in respect of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(c) Such defeasance or covenant defeasance will not (i) cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer or any Guarantor or (ii) result in the trust
arising from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940.
(d) Such defeasance or covenant defeasance will not result in a breach
or violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Issuer or any Guarantor is a party or
by which it is bound.
(e) If the Securities of such series are then listed on any national
securities exchange registered under the Securities Exchange Act of 1934,
the Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that the exercise of the option under Section 9.3 or 9.4, as the
case may be, will not cause such Securities to be delisted.
(f) In the case of an election under Section 9.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from the United States Internal Revenue Service (the
"IRS") a private letter ruling, (ii) there has been published by the IRS a
general revenue ruling, or (iii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in each case to the
effect that, and based thereon such opinion shall confirm that, the Holders
of the Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(g) in the case of an election under Section 9.4, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
holders of the Securities of such series will not recognize income, gain or
loss for United States Federal income tax purposes as a result of such
covenant defeasance and will be subject to United States Federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(h) in the case of an election under either Section 9.3 or Section
9.4, the Issuer shall have delivered to the Trustee an Opinion of Counsel
of Luxembourg counsel to the effect that (i) payments from the defeasance
trust will be free and exempt from any and all
43
<PAGE>
withholding and other taxes imposed or levied by or on behalf of Luxembourg
or any political subdivision thereof having the power to tax, and (ii)
Holders of the Securities of such series will not recognize any income,
gain or loss for Luxembourg income tax and other Luxembourg tax purposes as
a result of such deposit and defeasance or covenant defeasance, as
applicable, and will be subject to Luxembourg income tax and other
Luxembourg tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and defeasance or
covenant defeasance, as applicable, had not occurred.
(i) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which
may be imposed on the Issuer in connection therewith pursuant to
Section 2.4.
(j) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 9.3 or the covenant defeasance under Section 9.4 (as the
case may be) have been complied with.
SECTION 9.6 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 9.8, all moneys deposited with the Trustee
pursuant to Section 9.1 or 9.5 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular Securities of
such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 9.7 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 9.8 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest on any Security of
any series and not applied but remaining unclaimed for two years after the date
upon which such principal or interest shall have become due and payable, shall,
upon the written request of the Issuer or any Guarantor, as applicable and
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer or such Guarantor
by the Trustee for such series or such paying agent, and the Holder of the
Security of such series shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer or such Guarantor for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
SECTION 9.9 Indemnity for Direct Obligations of the United States. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the money or the direct obligations of the United
States of America deposited pursuant to Section 9.1 or 9.5 or the principal or
interest received in respect of such obligations.
SECTION 9.10 Reinstatement. If the Trustee or the paying agent is
unable to apply any money or direct obligations of the United States of America
in accordance with Section
44
<PAGE>
9.1 or 9.5 by reason of any legal proceedings or order or judgment or any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuer's and any Guarantor's obligations under this
Indenture and the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Nine until such time as
the Trustee or paying agent is permitted to apply all such money in accordance
with this Article Nine; provided that, if the Issuer or any Guarantor makes any
payment of principal of or interest on any such Security following the
reinstatement of its obligations, the Issuer or such Guarantor shall be
subrogated to the rights of the holders of such Securities to receive such
payment from the money or direct obligations of the United States of America
held by the Trustee or the paying agent.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Shareholders, Officers and Directors of
Issuer and Guarantors Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
shareholder, officer or director, as such, of the Issuer, any Guarantor or of
any successor, either directly or through the Issuer, such Guarantor or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the holders thereof and as part of the
consideration for, and as a condition of, the issue of the Securities.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 10.3 Successors and Assigns of Issuer and Guarantors Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer or any Guarantor shall bind
its successors and assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Guarantors, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served (i) by the Trustee shall be in
writing and be deposited postage prepaid in first class mail, delivered by a
nationally recognized overnight courier or transmitted by facsimile or (ii)
by the Holders of Securities shall be in writing and deposited postage
prepaid in first class mail or delivered by a nationally recognized overnight
courier, if to or on the Issuer, to Boulevard Royal, 26, Sixth Floor, L-2449
Luxembourg, Attention: the Managing Directors, facsimile no. (352) 464-3509;
if to or on Tyco, to The Gibbons Building, 10 Queen Street, Suite 301,
Hamilton HM11, Bermuda, Attention: Secretary, facsimile no. (441) 295-9647;
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, facsimile no. (603) 778-7330, or other such
address as may be set forth by notice to the Trustee and the Holders as
provided in this Section
45
<PAGE>
10.4. Any notice, direction, request or demand by the Issuer or any Guarantor or
any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made and received at
the Corporate Trust office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid or delivered by a nationally recognized
courier, to each Holder entitled thereto, at his last address as it appears in
the Security register. Neither the failure to mail or deliver any notice to
Holders, nor any defect in any notice so mailed or delivered, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail or courier service, it shall be impracticable to mail or deliver notice to
the Issuer, any Guarantor and the Holders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
or any Guarantor to the Trustee to take any action under any of the provisions
of this Indenture, the Issuer or such Guarantor shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate (other than those provided for in Section 3.5 and
Section 11.5) or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (a) a statement that the Person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer or
any Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters, information with respect to
which is in the possession of the Issuer or such Guarantor, upon the
certificate, statement or opinion of or representations by an officer of
officers of the Issuer or such Guarantor, as the case may be, unless such
counsel knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid
46
<PAGE>
are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
any Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Issuer or such Guarantor, as the case
may be, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and affect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 10.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "incorporated provision"), such incorporated provision shall control.
SECTION 10.8 New York Law to Govern. This Indenture, each Security and
each Guarantee shall be deemed to be a contract under the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
such State, without regard to principles of the conflict of laws thereof.
SECTION 10.9 Consent to Jurisdiction and Service of Process. Each of
the Issuer and Tyco agrees that any legal suit, action or proceeding brought by
any party to enforce any rights under or with respect to this Indenture, any
Security and any Guarantee or any other document or the transactions
contemplated hereby or thereby may be instituted in any state or federal court
in 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 Issuer in any such suit, action or proceeding and shall be
taken and held to be valid personal service upon the Issuer or Tyco, as the case
may be. Said designation and appointment shall be irrevocable. Nothing in this
Section 10.9 shall affect the right of the Holders to serve process in any
manner permitted by law or limit the right of the Holders to bring proceedings
against the Issuer or Tyco in the courts of any jurisdiction or jurisdictions.
Each of
47
<PAGE>
the Issuer and Tyco further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of CT Corporation in
full force and effect so long as the Securities are outstanding. Each of the
Issuer and Tyco hereby irrevocably and unconditionally authorizes and directs CT
Corporation to accept such service on its behalf. If for any reason CT
Corporation ceases to be available to act as such, each of the Issuer and Tyco
agrees to designate a new agent in New York City.
To the extent that the Issuer or Tyco has or hereafter may acquire any
immunity from jurisdiction of any court (including, without limitation, any
court in the United States, the State of New York, Luxembourg, Bermuda or any
political subdivisions thereof) or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property or assets, this
Indenture, the Securities, the Guarantees or any other documents or actions to
enforce judgments in respect of any thereof, the each of the Issuer and Tyco
hereby irrevocably waives such immunity, and any defense based on such immunity,
in respect of its obligations under the above-referenced documents and the
transactions contemplated thereby, to the extent permitted by law.
SECTION 10.10 Judgment Currency. If pursuant to a judgment or order
being made or registered against the Issuer or Tyco, any payment under or in
connection with this Indenture, any Securities or any Guarantees to a Holder is
made or satisfied in a currency (the "Judgment Currency") other than in United
States dollars then, to the extent that the payment (when converted into United
States dollars at the rate of exchange on the date of payment or, if it is not
practicable for such Holder to purchase United States dollars with the Judgment
Currency on the date of payment, at the rate of exchange as soon thereafter as
it is practicable for it to do so) actually received by such Holder falls short
of the amount due under the terms of this Indenture, any Securities or any
Guarantees, each of the Issuer and Tyco shall, to the extent permitted by law,
as a separate and independent obligation, indemnify and hold harmless such
Holder against the amount of such short fall and such indemnity shall continue
in full force and effect notwithstanding any such judgment or order as
aforesaid. For the purpose of this Section, "rate of exchange" means the rate at
which the Holder is able on the relevant date to purchase United States dollars
with the Judgment Currency and shall take into account any premium and other
costs of exchange.
SECTION 10.11 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.12 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The provisions of this Article
shall be applicable any redemption pursuant to Section 12.1 and to the
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.4 for Securities of such series.
48
<PAGE>
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part only
the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is
acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee at least 45 days
prior to the date fixed for redemption (unless a shorter period shall be
satisfactory to the Trustee), an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the
49
<PAGE>
applicable redemption price, together with interest accrued to the date fixed
for redemption, and on and after said date (unless the Issuer shall default in
the payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue and, except as provided in Sections
5.5 and 9.8, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, said Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
redemption price, together with interest accrued thereon to the date fixed for
redemption; provided that any semiannual payment of interest becoming due on the
date fixed for redemption shall be payable to the Holders of such Securities
registered as such on the relevant record date subject to the terms and
provisions of Section 2.5 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by a managing director or by an authorized
officer of the Issuer and delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such written statement directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment." The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.8, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
50
<PAGE>
On or before the forty-fifth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement (which need not contain the statements required by Section 10.5)
signed by a managing director or by an authorized officer of the Issuer (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series, (b) stating that none of the Securities of such series has theretofore
been so credited and, (c) stating whether or not the Issuer intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Failure of the Issuer, on or before any such forty-fifth day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Issuer will make
no optional sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Issuer shall so request) with respect to
the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 or less and the
Issuer makes no such request then it shall be carried over until a sum in excess
of $50,000 is available. The Trustee shall select, in the manner provided in
Section 11.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are (a) owned by the Issuer or an
entity known by the Trustee to be directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer, as
shown by the Security register, and not known to the Trustee to have been
pledged or hypothecated by the Issuer or any such entity or (b) identified in an
Officers' Certificate at least 60 days prior to the sinking fund payment date as
being beneficially owned by, and not pledged or hypothecated by, the Issuer or
an entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer shall be excluded from Securities of
such series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 11.2 (and with the
effect provided in Section 11.3) for the redemption of Securities of such series
in part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at
51
<PAGE>
maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Four and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 4.9 or
the default cured on or before the forty-fifth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE TWELVE
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
SECTION 12.1 Redemption Upon Changes in Withholding Taxes. The
Securities of any series may be redeemed, as a whole but not in part, at the
election of the Issuer, upon not less than 30 nor more than 60 days notice
(which notice shall be irrevocable), at a redemption price equal to 100% of the
principal amount thereof, together with accrued interest, if any, to the
redemption date and Additional Amounts (as defined in Section 12.2), if any, if
as a result of any amendment to, or change in, the laws or regulations of
Luxembourg or any political subdivision or taxing authority thereof or therein
having power to tax (a "Taxing Authority"), or any change in the application or
official interpretation of such laws or regulations which amendment or change
becomes effective after the date the Securities of such series are issued, the
Issuer has become or will become obligated to pay Additional Amounts, on the
next date on which any amount would be payable with respect to the Securities of
such series, and such obligation cannot be avoided by the use of reasonable
measures available to the Issuer; provided, however, that (a) no such notice of
redemption may be given earlier than 60 days prior to the earliest date on which
the Issuer would be obligated to pay such Additional Amounts, and (b) at the
time such notice of redemption is given, such obligation to pay such Additional
Amounts remains in effect. Prior to the giving of any notice of redemption
described in this paragraph, the Issuer shall deliver to the Trustee (i) an
Officer's Certificate of the Issuer stating that the obligation to pay
Additional Amounts cannot be avoided by the Issuer taking reasonable measures
available to it and (ii) a written opinion of independent legal counsel to the
Issuer of recognized standing to the effect that the Issuer has or will become
obligated to pay Additional Amounts as a result of a change, amendment, official
interpretation or application described above and that the Issuer cannot avoid
the payment of such Additional Amounts by taking reasonable measures available
to it.
SECTION 12.2 Payment of Additional Amounts. All payments made by the
Issuer, Tyco and any other Guarantor under or with respect to the Securities and
the Guarantees will be made free and clear of and without withholding or
deduction for or on account of any
52
<PAGE>
present or future taxes, duties, levies, imposts, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of any Taxing
Authority ("Taxes"), unless the Issuer, Tyco or such Guarantor, as the case may
be, is required to withhold or deduct Taxes by law or by the interpretation or
administration thereof. In the event that the Issuer, Tyco or such Guarantor is
required to so withhold or deduct any amount for or on account of any Taxes from
any payment made under or with respect to the Securities or the Guarantees, as
the case may be, the Issuer, Tyco or such Guarantor, as the case may be, will
pay such additional amounts ("Additional Amounts") as may be necessary so that
the net amount received by each Holder of Securities (including Additional
Amounts) after such withholding or deduction will equal the amount that such
Holder would have received if such Taxes had not been required to be withheld or
deducted; provided that no Additional Amounts will be payable with respect to a
payment made to a Holder of Securities to the extent:
(a) that any such Taxes would not have been so imposed but for the
existence of any present or former connection between such Holder and the
Taxing Authority imposing such Taxes (other than the mere receipt of such
payment, acquisition, ownership or disposition of such Securities or the
exercise or enforcement of rights under such Securities, the Guarantees or
this Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or personal
property Tax imposed with respect to such Securities, except as otherwise
provided herein;
(c) that any such Taxes would not have been so imposed but for the
presentation of such Securities (where presentation is required) for
payment on a date more than 30 days after the date on which such payment
became due and payable or the date on which payment thereof is duly
provided for, whichever is later, except to the extent that the beneficiary
or Holder thereof would have been entitled to Additional Amounts had the
Securities been presented for payment on any date during such 30-day
period; or
(d) that such Holder would not be liable or subject to such
withholding or deduction of Taxes but for the failure to make a valid
declaration of non-residence or other similar claim for exemption, if (x)
the making of such declaration or claim is required or imposed by statute,
treaty, regulation, ruling or administrative practice of the relevant
Taxing Authority as a precondition to an exemption from, or reduction in,
the relevant Taxes, and (y) at least 60 days prior to the first payment
date with respect to which the Issuer, Tyco or such Guarantor shall apply
this clause (d), the Issuer, Tyco or such Guarantor shall have notified all
Holders of Securities in writing that they shall be required to provide
such declaration or claim.
The Issuer, Tyco or such Guarantor, as applicable, will also (i) make
such withholding or deduction of Taxes and (ii) remit the full amount of Taxes
so deducted or withheld to the relevant Taxing Authority in accordance with all
applicable laws. The Issuer, Tyco or such Guarantor, as applicable, will use
their reasonable best efforts to obtain certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld from each Taxing
Authority imposing such Taxes. The Issuer, Tyco or such Guarantor, as the case
may be, will, upon request, make available to the Holders of the Securities,
within 60 days after the date the payment of any Taxes so deducted or withheld
is due pursuant to applicable law, certified copies of tax receipts evidencing
such payment by the Issuer, Tyco or such Guarantor or if, notwithstanding the
Issuer's, Tyco's or such Guarantor's efforts to obtain such receipts, the same
are not obtainable, other evidence of such payments by the Issuer, Tyco or such
Guarantor.
At least 30 days prior to each date on which any payment under or with
respect to the
53
<PAGE>
Securities is due and payable, if the Issuer, Tyco or such Guarantor will be
obligated to pay Additional Amounts with respect to such payment, the Issuer,
Tyco or such Guarantor will deliver to the Trustee an Officers' Certificate
stating the fact that such Additional Amounts will be payable, the amounts so
payable and will set forth such other information as is necessary to enable such
Trustee to pay such Additional Amounts to Holders of Securities on the payment
date.
The foregoing provisions shall survive any termination of the
discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction
in which any successor Person to the Issuer, Tyco or such Guarantor, as the case
may be, is organized or is engaged in business for tax purposes or any political
subdivisions or taxing authority or agency thereof or therein.
In addition, the Issuer will pay any stamp, issue, registration,
documentary or other similar taxes and duties, including interest, penalties and
Additional Amounts with respect thereto, payable in Luxembourg or the United
States or any political subdivision or taxing authority of or in the foregoing
in respect of the creation, issue, offering, enforcement, redemption or
retirement of the Securities.
Whenever in this Indenture or the Securities there is mentioned, in
any context, the payment of principal, redemption price, interest or any other
amount payable under or with respect to any Security, such mention shall be
deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof.
ARTICLE THIRTEEN
GUARANTEES
SECTION 13.1 Guarantee. Except as otherwise provided herein, Tyco and
each Subsidiary that becomes a Guarantor after the date of this Indenture
(collectively with Tyco, the "Guarantors") hereby, jointly and severally, fully
and unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee, and to the Trustee on behalf of such Holder, the due
and punctual payment of the principal of and interest on such Security and all
other obligations of the Issuer under this Indenture when and as the same shall
become due and payable, whether at the stated maturity, by acceleration, call
for redemption or otherwise, in accordance with the terms of such Security and
of this Indenture. Each Guarantor hereby, jointly and severally, fully and
unconditionally, also guarantees to the Trustee the due and punctual payment of
all obligations of the Issuer to the Trustee under this Indenture. In case of
the failure of the Issuer punctually to make any such payment, each Guarantor
hereby, jointly and severally, agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the
stated maturity or by acceleration, call for redemption or otherwise, and as if
such payment were made by the Issuer.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be absolute and unconditional, irrespective of, and
shall be unaffected by, the validity, regularity or enforceability of such
Security or this Indenture, the absence of any action to enforce the same or any
release, amendment, waiver or indulgence granted to the Issuer or any Guarantor
or any consent to departure from any requirement of any other guarantee of all
or any of the Securities or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each of the Guarantors hereby waives the benefits of diligence, presentment,
demand for payment, any requirement that the Trustee or any of the Holders
protect, secure, perfect or insure any security interest in or other lien on any
property subject thereto or exhaust any right or take any action against the
Issuer or any other Person or
54
<PAGE>
any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the
Issuer, protest or notice with respect to such Security or the Indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged in respect of such Security except by complete
performance of the obligations contained in such Security and in such Guarantee.
Each Guarantor agrees that if, after the occurrence and during the continuance
of an Event of Default, the Trustee or any of the Holders are prevented by
applicable law from exercising their respective rights to accelerate the
maturity of the Securities, to collect interest on the Securities, or to enforce
or exercise any other right or remedy with respect to the Securities, such
Guarantor agrees to pay to the Trustee for the account of the Holders, upon
demand therefor, the amount that would otherwise have been due and payable had
such rights and remedies been permitted to be exercised by the Trustee or any of
the Holders.
Each Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Guarantee is endorsed against the Issuer in respect of
any amounts paid by such Guarantor on account of such Security pursuant to the
provisions of its Guarantee or this Indenture; provided, however, that no
Guarantor shall be entitled to enforce or to receive any payment arising out of,
or based upon, such right of subrogation until the principal of and interest on
all Securities issued hereunder shall have been paid in full.
Each Guarantor that makes or is required to make any payment in
respect of its Guarantee shall be entitled to seek contribution from the other
Guarantors to the extent permitted by applicable law; provided, however, that no
Guarantor shall be entitled to enforce or receive any payments arising out of,
or based upon, such right of contribution until the principal of and interest on
all Securities issued hereunder shall have been paid in full.
Each Guarantee shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Issuer for
liquidation or reorganization, should the Issuer become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any part of the Issuer's assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the Securities, is, pursuant
to applicable law, rescinded or reduced in amount, or must otherwise be restored
or returned by any Holder of the Securities, whether as a "voidable preference,"
"fraudulent transfer," or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Securities shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
Any term or provision of any Guarantee to the contrary
notwithstanding, the aggregate amount of the obligations guaranteed hereunder
shall be reduced to the extent necessary to prevent such Guarantee from
violating or becoming voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
SECTION 13.2 Execution and Delivery of Guarantees. The Guarantees to
be endorsed on the Securities shall include the terms of the Guarantee set forth
in Section 13.1 and shall be substantially in the form established pursuant to
Section 2.2. Each of the Guarantors hereby agrees to execute its Guarantee, in a
form established pursuant to Section 2.2, to be endorsed on each Security
authenticated and delivered by the Trustee.
The Guarantee shall be executed on behalf of each respective Guarantor
by any one of
55
<PAGE>
such Guarantor's chairman of the Board of Directors, president, vice presidents
or other person duly authorized by the Board of Directors of such Guarantor. The
signature of any or all of these persons on the Guarantee may be manual or
facsimile.
A Guarantee bearing the manual or facsimile signature of individuals
who were at any time the proper officers of a Guarantor shall bind such
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of the Security on
which such Guarantee is endorsed or did not hold such offices at the date of
such Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantors and shall bind each Guarantor
notwithstanding the fact that Guarantee does not bear the signature of such
Guarantor. Each of the Guarantors hereby jointly and severally agrees that its
Guarantee set forth in Section 13.1 and in the form of Guarantee established
pursuant to Section 2.2 shall remain in full force and effect notwithstanding
any failure to endorse a Guarantee on any Security.
SECTION 13.3 Release of Guarantees. Notwithstanding anything in this
Article Thirteen to the contrary, concurrently with the payment in full of the
principal of, premium, if any, and interest on the Securities, the Guarantors
shall be released from and relieved of their obligations under this Article
Thirteen. Upon the delivery by the Issuer to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that the transaction giving
rise to the release of this Guarantee was made by the Issuer in accordance with
the provisions of this Indenture and the Securities, the Trustee shall execute
any documents reasonably required in order to evidence the release of the
Guarantors from their obligations under this Guarantee. If any of the
obligations to pay the principal of, premium, if any, and interest on the
Securities and all other obligations of the Issuer are revived and reinstated
after the termination of this Guarantee, then all of the obligations of the
Guarantors under this Guarantee shall be revived and reinstated as if this
Guarantee had not been terminated until such time as the principal of, premium,
if any, and interest on the Securities are paid in full, and each Guarantor
shall enter into an amendment to this Guarantee, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.
This Guarantee shall terminate with respect to the applicable
Guarantor and shall be automatically and unconditionally released and discharged
as provided in Section 3.11(b).
SECTION 13.4 Additional Guarantors. A Subsidiary shall become a
Guarantor with respect to the Securities, as contemplated by Section 3.11(a), by
executing and delivering to the Trustee (a) a supplemental indenture, in form
and substance reasonably satisfactory to the Trustee, which subjects such Person
to the provisions (including the representations and warranties) of this
Indenture as a Guarantor and (b) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person and
such supplemental indenture and such Person's obligations under its Guarantee
and this Indenture constitute the legal, valid, binding and enforceable
obligations of such Person (subject to such customary exceptions concerning
creditors' rights and equitable principles.
56
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of June __, 1998.
TYCO INTERNATIONAL GROUP S.A., as Issuer
By:
---------------------------------------
Name:
Title:
TYCO INTERNATIONAL LTD., as Guarantor
By:
---------------------------------------
Name:
Title:
Attest:
By:
---------------------
THE BANK OF NEW YORK, as Trustee
By:
---------------------------------------
Name:
Title:
Attest:
By:
----------------------
57
<PAGE>
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE NO. 1
$750,000,000
6-1/8% Notes due 2001
THIS SUPPLEMENTAL INDENTURE NO. 1, dated as of June 9, 1998, among TYCO
INTERNATIONAL GROUP S.A., a Luxembourg company (the "Company"), TYCO
INTERNATIONAL LTD., a Bermuda company ("Tyco") and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the 'Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and Tyco have heretofore executed and delivered to the
Trustee an Indenture, dated as of June 9, 1998 (the "Indenture"), providing for
the issuance from time to time of one or more series of the Company's
Securities;
WHEREAS, Article Seven of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture; and
WHEREAS, Section 7.1(e) of the Indenture provides that the Company, Tyco
and the Trustee may enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as permitted by Sections
2.1 and 2.4 of the Indenture.
NOW THEREFORE:
In consideration of the premises and the issuance of the series of
Securities provided for herein, the Company, Tyco and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders of the Securities of such series as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1 This Supplemental Indenture No. 1 constitutes an integral
part of the Indenture.
SECTION 1.2 For all purposes of this Supplemental Indenture No. 1:
<PAGE>
(a) capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 1; and
(c) the terms "HEREIN", "HEREOF", "HEREUNDER" and other words of
similar import refer to this Supplemental Indenture No. 1.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 TITLE OF THE SECURITIES. There shall be a series of
Securities designated as the "6-1/8% Notes due 2001" (the "Notes").
SECTION 2.2 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT; DATE OF NOTES.
The aggregate principal amount of the Notes shall not initially exceed
$750,000,000. Each Note shall be dated the date of its authentication.
SECTION 2.3 PRINCIPAL PAYMENT DATE. Subject to the provisions of
Section 2.6 hereof and Articles Four and Twelve of the Indenture, the principal
of the Notes shall be become due and payable in a single installment on June 15,
2001.
SECTION 2.4 INTEREST AND INTEREST RATES. Interest on the Notes shall be
payable semiannually on June 15 and December 15 of each year beginning on
December 15, 1998 (each, an "Interest Payment Date"); PROVIDED, HOWEVER, that if
an Interest Payment Date would otherwise be a day that is not a Business Day,
such Interest Payment Date shall be the next succeeding Business Day, and no
additional interest shall be paid in respect of such intervening period.
The interest payable on each Interest Payment Date shall be the amount of
interest accrued from June 9, 1998 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, as the case may be, until
the principal amount of the Notes has been paid or duly provided for. Interest
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
The interest rate borne by the Notes will be 6-1/8% per annum until the
Notes are paid in full.
The interest payable on any Note which is punctually paid or duly provided
for on any Interest Payment Date shall be paid to the Person in whose name such
Note is registered at the close of business on the June 1 or December 1 (in each
case, whether or not a Business Day), respectively, immediately preceding such
Interest Payment Date (each, a "Regular Record Date"). Interest payable on any
Note which is not punctually paid or duly provided for on any Interest Payment
Date therefor shall forthwith cease to be payable to the Person in whose name
such Note is registered at the close of business on the Regular Record Date
immediately preceding such Interest Payment Date, and such interest shall
instead be paid to the Person in whose name such Note
-2-
<PAGE>
is registered at the close of business on the record date established for such
payment by notice by or on behalf of the Company to the Holders of the Notes
mailed by first-class mail not less than 15 days prior to such record date to
their last addresses as they shall appear upon the Security register, such
record date to be not less than five days preceding the date of payment of such
defaulted interest.
SECTION 2.5 PLACE OF PAYMENT. The place of payment where the Notes may
be presented or surrendered for payment, where the principal of and interest and
any other payments due on the Notes are payable, where the Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Notes and the Indenture may be
served shall be in the Borough of Manhattan, The City of New York, and the
office or agency maintained by the Company for such purpose shall initially be
the Corporate Trust Office of the Trustee.
At the option of the Company, interest on the Notes may be paid (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Holders of the Notes or (ii) at the expense of the
Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in writing to the Trustee by such Person by the applicable
record date.
SECTION 2.6 REDEMPTION. Except to the extent described in Article
Twelve of the Indenture, the Notes are not redeemable prior to maturity.
SECTION 2.7 DENOMINATION. The Notes shall be issued in denominations of
$1,000 and integral multiples thereof.
SECTION 2.8 CURRENCY. Principal and interest on the Notes shall be
payable in United States dollars.
SECTION 2.9 NOTES TO BE ISSUED IN GLOBAL FORM; EXCHANGE FOR CERTIFICATED
NOTES. The Notes will be initially represented by one or more Notes in global
from (the "Global Note"). The Company hereby designates The Depository Trust
Company as the initial Depositary for the Global Note. The Global Note will be
deposited with the Trustee, as custodian for the Depositary. Unless and until
it is exchanged in whole or in part for Notes in certificated form, the Global
Note 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 for the Notes or a nominee of such successor Depositary.
The Depositary may surrender the Global Note in exchange in whole or in part for
Notes in certificated form on such terms as are acceptable to the Company and
Depositary.
The Company may at any time in its sole discretion determine that all or
any portion of the Notes shall no longer be represented by a Note or Notes in
global form. In such event the Company shall execute, and the Trustee, upon
receipt of a written Company order
-3-
<PAGE>
(pursuant to Section 2.5 of the Indenture) for the authentication and delivery
of certificated Notes of like tenor, shall authenticate and deliver Notes of
like tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the applicable principal amount of the Global Note, in
exchange for such Global Note (or the applicable portion thereof).
SECTION 2.10 FORM OF NOTES. The Notes shall be substantially in the form
attached as Exhibit A hereto.
SECTION 2.11 DEFEASANCE AND COVENANT DEFEASANCE. The provisions of
Article Nine of the Indenture shall apply to the Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 The Indenture, as supplemented and amended by this
Supplemental Indenture No. 1, is in all respects hereby adopted, ratified and
confirmed.
SECTION 3.2 This Supplemental Indenture No. 1 may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original; and all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.3 THIS SUPPLEMENTAL INDENTURE NO. 1 AND EACH NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed and their respective corporate seals to be
hereunto fixed and attested as of the day and year first written above.
TYCO INTERNATIONAL GROUP S.A.
By:
-----------------------------
Name:
Title:
Attest:
By
----------------------------
Name:
Title:
TYCO INTERNATIONAL LTD.
By:
-----------------------------
Name:
Title:
Attest:
By
----------------------------
Name:
Title:
THE BANK OF NEW YORK, Trustee
By:
-----------------------------
Name:
Title:
Attest:
By
----------------------------
Name:
Title:
-5-
<PAGE>
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in
definitive registered form, this Note may not be transferred except as a whole
by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
TYCO INTERNATIONAL GROUP S.A.
6-1/8% NOTE DUE 2001
No.
$ CUSIP: 902118AA6
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), for
value received, hereby promises to pay to ____________________ or registered
assigns, the principal sum of _____________________________ DOLLARS on June 15,
2001, at the office or agency of the Issuer in the Borough of Manhattan, The
City of New York, in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts, and to pay semiannually on June 15 and December 15 of each year (each, an
"Interest Payment Date"; provided, however, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment Date
shall be the next succeeding Business Day but no additional interest shall be
paid in respect of such intervening period), commencing December 15, 1998, the
amount of interest on said principal sum at said office or agency, in like coin
or currency, at the rate per annum specified in the title of this Note, from
________________ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for until said principal sum has been paid or
duly provided for. Interest shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. For purposes of this Note, "Business Day"
means any day other than a Saturday, a Sunday or a day on which banking
institutions in The City of New York are authorized or obligated by law,
regulation or executive order to be closed.
The interest payable on any Interest Payment Date which is punctually paid
or duly provided for on such Interest Payment Date will be paid to the Person in
whose name this Note is
<PAGE>
registered at the close of business on the June 1 or December 1 (in each case,
whether or not a Business Day), as the case may be (each, a "Regular Record
Date"), immediately preceding such Interest Payment Date. Interest payable on
this Note which is not punctually paid or duly provided for on any Interest
Payment Date therefor shall forthwith cease to be payable to the Person in whose
name this Note is registered at the close of business on the Regular Record Date
immediately preceding such Interest Payment Date, and such interest shall
instead be paid to the Person in whose name this Note is registered at the close
of business on the record date established for such payment by notice by or on
behalf of the Issuer to the Holders of the Notes mailed by first-class mail not
less than 15 days prior to such record date to their last addresses as they
shall appear upon the Security register, such record date to be not less than
five days preceding the date of payment of such defaulted interest. At the
option of the Issuer, interest on the Notes may be paid (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the
register of Holders of the Notes or (ii) at the expense of the Issuer, by wire
transfer to an account maintained by the Person entitled thereto as specified in
writing to the Trustee by such Person by the applicable record date of the
Notes.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to on the reverse hereof.
2
<PAGE>
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this
instrument to be signed by its duly authorized officers and has caused its
corporate seal to be affixed hereunto or imprinted hereon.
Dated:
TYCO INTERNATIONAL GROUP S.A.
[SEAL] By:________________________________
Title:
By:________________________________
Title:
Attest: ________________________
Name:
Title:
3
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: __________________________
Authorized Signatory
4
<PAGE>
GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Note the
payment of principal of, interest on and Additional Amounts in respect of the
Security upon which this Guarantee is endorsed in the amounts and at the time
when due and payable whether by declaration thereof, or otherwise, and interest
on the overdue principal and interest, if any, of such Note, if lawful, and the
payment or performance of all other obligations of the Issuer under the
Indenture or the Notes, to the holder of such Note and the Trustee, all in
accordance with and subject to the terms and limitations of such Note and
Article Thirteen of the Indenture. This Guarantee will not become effective
until the Trustee duly executes the certificate of authentication on this Note.
This Guarantee shall be governed by and construed in accordance with the laws of
the State of New York, without regard to conflict of law principles thereof.
Dated:
TYCO INTERNATIONAL LTD.
By:___________________________
Title:
Attest: __________________________
Name:
Title:
5
<PAGE>
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
6-1/8% NOTE DUE 2001
1. INDENTURE. (a) This Note is one of a duly authorized issue of notes
of the Issuer (hereinafter called the "Notes") of a series designated as the
6-1/8% Notes due 2001 of the Issuer, initially limited in aggregate principal
amount to $750,000,000, all issued or to be issued under and pursuant to an
indenture, dated as of June 9, 1998, as amended and supplemented by Supplemental
Indenture No. 1, dated as of June 9, 1998 (as so amended and supplemented, the
"Indenture"), among the Issuer, Tyco International Ltd. ("Tyco") and The Bank of
New York, as Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Issuer, Tyco, the Trustee and the Holders of the Notes.
(b) Other debentures, notes, bonds or other evidences of indebtedness
(together with the Notes, hereinafter called the "Securities") may be issued
under the Indenture in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary from the Notes and each other, as in the
Indenture provided.
(c) All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
2. AMENDMENTS AND WAIVERS. (a) The Indenture contains provisions
permitting the Issuer and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Securities of each such series; PROVIDED, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 4.1 of the Indenture or the amount thereof provable in
bankruptcy pursuant to Section 4.2 of the Indenture, or impair or affect the
rights of any Holder to institute suit for the payment thereof, without the
consent of the
6
<PAGE>
Holder of each Security so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each Security
affected.
(b) It is also provided in the Indenture that, with respect to
certain defaults or Events of Default regarding the Securities of any series,
prior to any declaration accelerating the maturity of such Securities, the
Holders of a majority in aggregate principal amount Outstanding of the
Securities of such series (or, in the case of certain defaults or Events of
Default, all or certain series of the Securities) may on behalf of the Holders
of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default in the payment of the principal of or premium, if any, or interest on
any of the Securities. Any such consent or waiver by the Holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Note and any
Notes which may be issued in exchange or substitution herefor, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.
3. OBLIGATION TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, Tyco or any other
obligor on the Notes, which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on this Note in the manner, at the respective
times, at the rate, at the place and in the coin or currency herein prescribed.
4. REDEMPTION. Except to the extent provided in Article Twelve of the
Indenture, this Note may not be redeemed prior to maturity.
5. CERTAIN COVENANTS. The Indenture restricts the Issuer's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Issuer is obliged to abide by certain covenants, including covenants limiting
the amount of liens it may incur, as well as its ability to enter into sale and
leaseback transactions, a covenant limiting the ability of its subsidiaries to
incur indebtedness, and a covenant requiring it to pay or discharge all taxes,
all as more fully described in the Indenture. All of such covenants are subject
to the covenant defeasance procedures outlined in the Indenture.
6. EFFECT OF EVENT OF DEFAULT. If an Event of Default shall have
occurred and be continuing under the Indenture, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
7. DEFEASANCE. The Indenture contains provisions for defeasance and
covenant defeasance at any time of the indebtedness on this Note upon compliance
by the Issuer with certain conditions set forth therein.
8. DENOMINATIONS; TRANSFER. (a) The Notes are issuable in registered
form without coupons in denominations of $1,000 and any multiple of $1,000 at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations provided in the
Indenture.
7
<PAGE>
(b) Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture. This Note may also be surrendered
for exchange at the aforesaid office or agency for Notes in other authorized
denominations in an equal aggregate principal amount. No service charge shall be
made for any registration of transfer or any exchange of the Notes, except that
the Issuer may require payment of any tax or other governmental charge imposed
in connection therewith.
(c) A certificate in global form representing all of a portion of the
Notes may not be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or any such nominee to a
successor Depositary for such Notes or a nominee of such successor Depositary.
9. HOLDER AS OWNER. The Issuer, Tyco, the Trustee and any authorized
agent of the Issuer, Tyco or the Trustee may deem and treat the registered
Holder hereof as the absolute owner of this Note (whether or not this Note shall
be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
principal hereof and, subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and none of the Issuer, Tyco or the Trustee
or any authorized agent of the Issuer, Tyco or the Trustee shall be affected by
any notice to the contrary.
10. NO LIABILITY OF CERTAIN PERSONS. No recourse under or upon any
obligation, covenant or agreement of the Issuer or Tyco in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, or any
past, present or future shareholder, officer or director, as such, of the
Issuer, Tyco or of any successor corporation of either of them, either directly
or through the Issuer, Tyco or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
11. GOVERNING LAW. The laws of the State of New York govern the Indenture
and this Note.
8
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto:
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF ASSIGNEE
_________________________________
_________________________________
_________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
the within Note of Tyco International Group S.A. and all rights thereunder and
hereby irrevocably constitutes and appoints such person attorney to transfer
such Note on the books of Tyco International Group S.A., with full power of
substitution in the premises.
Dated:
_______________________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE
SIGNATURE SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY,
A MEMBER ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY SUCH OTHER
ENTITY WHOSE SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO THE TRANSFER
AGENT.
9
<PAGE>
Exhibit 4.3
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE NO. 2
$750,000,000
6-3/8% Notes due 2005
THIS SUPPLEMENTAL INDENTURE NO. 2, dated as of June 9, 1998, among TYCO
INTERNATIONAL GROUP S.A., a Luxembourg company (the "Company"), TYCO
INTERNATIONAL LTD., a Bermuda company ("Tyco") and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and Tyco have heretofore executed and delivered to the
Trustee an Indenture, dated as of June 9, 1998 (the "Indenture"), providing for
the issuance from time to time of one or more series of the Company's
Securities;
WHEREAS, Article Seven of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture; and
WHEREAS, Section 7.1(e) of the Indenture provides that the Company, Tyco
and the Trustee may enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as permitted by Sections
2.1 and 2.4 of the Indenture.
NOW THEREFORE:
In consideration of the premises and the issuance of the series of
Securities provided for herein, the Company, Tyco and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders of the Securities of such series as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1 This Supplemental Indenture No. 2 constitutes an integral
part of the Indenture.
SECTION 1.2 For all purposes of this Supplemental Indenture No. 2:
<PAGE>
(a) capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 2; and
(c) the terms "HEREIN", "HEREOF", "HEREUNDER" and other words of
similar import refer to this Supplemental Indenture No. 2.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 TITLE OF THE SECURITIES. There shall be a series of
Securities designated as the "6-3/8% Notes due 2005" (the "Notes").
SECTION 2.2 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT; DATE OF NOTES.
The aggregate principal amount of the Notes shall not initially exceed
$750,000,000. Each Note shall be dated the date of its authentication.
SECTION 2.3 PRINCIPAL PAYMENT DATE. Subject to the provisions of
Section 2.6 hereof and Articles Four and Twelve of the Indenture, the principal
of the Notes shall be become due and payable in a single installment on June 15,
2005.
SECTION 2.4 INTEREST AND INTEREST RATES. Interest on the Notes shall be
payable semiannually on June 15 and December 15 of each year beginning on
December 15, 1998 (each, an "Interest Payment Date"); PROVIDED, HOWEVER, that if
an Interest Payment Date would otherwise be a day that is not a Business Day,
such Interest Payment Date shall be the next succeeding Business Day, and no
additional interest shall be paid in respect of such intervening period.
The interest payable on each Interest Payment Date shall be the amount of
interest accrued from June 9, 1998 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, as the case may be, until
the principal amount of the Notes has been paid or duly provided for. Interest
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
The interest rate borne by the Notes will be 6-3/8% per annum until the
Notes are paid in full.
The interest payable on any Note which is punctually paid or duly provided
for on any Interest Payment Date shall be paid to the Person in whose name such
Note is registered at the close of business on the June 1 or December 1 (in each
case, whether or not a Business Day), respectively, immediately preceding such
Interest Payment Date (each, a "Regular Record Date"). Interest payable on any
Note which is not punctually paid or duly provided for on any Interest Payment
Date therefor shall forthwith cease to be payable to the Person in whose name
such Note is registered at the close of business on the Regular Record Date
immediately preceding such Interest Payment Date, and such interest shall
instead be paid to the Person in whose name such Note is
-2-
<PAGE>
registered at the close of business on the record date established for such
payment by notice by or on behalf of the Company to the Holders of the Notes
mailed by first-class mail not less than 15 days prior to such record date to
their last addresses as they shall appear upon the Security register, such
record date to be not less than five days preceding the date of payment of such
defaulted interest.
SECTION 2.5 PLACE OF PAYMENT. The place of payment where the Notes may
be presented or surrendered for payment, where the principal of and interest and
any other payments due on the Notes are payable, where the Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Notes and the Indenture may be
served shall be in the Borough of Manhattan, The City of New York, and the
office or agency maintained by the Company for such purpose shall initially be
the Corporate Trust Office of the Trustee.
At the option of the Company, interest on the Notes may be paid (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Holders of the Notes or (ii) at the expense of the
Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in writing to the Trustee by such Person by the applicable
record date.
SECTION 2.6 REDEMPTION. Except to the extent described in Article
Twelve of the Indenture, the Notes are not redeemable prior to maturity.
SECTION 2.7 DENOMINATION. The Notes shall be issued in denominations of
$1,000 and integral multiples thereof.
SECTION 2.8 CURRENCY. Principal and interest on the Notes shall be
payable in United States dollars.
SECTION 2.9 NOTES TO BE ISSUED IN GLOBAL FORM; EXCHANGE FOR CERTIFICATED
NOTES. The Notes will be initially represented by one or more Notes in global
from (the "Global Note"). The Company hereby designates The Depository Trust
Company as the initial Depositary for the Global Note. The Global Note will be
deposited with the Trustee, as custodian for the Depositary. Unless and until
it is exchanged in whole or in part for Notes in certificated form, the Global
Note 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 for the Notes or a nominee of such successor Depositary.
The Depositary may surrender the Global Note in exchange in whole or in part for
Notes in certificated form on such terms as are acceptable to the Company and
Depositary.
The Company may at any time in its sole discretion determine that all or
any portion of the Notes shall no longer be represented by a Note or Notes in
global form. In such event the Company shall execute, and the Trustee, upon
receipt of a written Company order
-3-
<PAGE>
(pursuant to Section 2.5 of the Indenture) for the authentication and delivery
of certificated Notes of like tenor, shall authenticate and deliver Notes of
like tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the applicable principal amount of the Global Note, in
exchange for such Global Note (or the applicable portion thereof).
SECTION 2.10 FORM OF NOTES. The Notes shall be substantially in the form
attached as Exhibit A hereto.
SECTION 2.11 DEFEASANCE AND COVENANT DEFEASANCE. The provisions of
Article Nine of the Indenture shall apply to the Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 The Indenture, as supplemented and amended by this
Supplemental Indenture No. 2, is in all respects hereby adopted, ratified and
confirmed.
SECTION 3.2 This Supplemental Indenture No. 2 may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original; and all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.3 THIS SUPPLEMENTAL INDENTURE NO. 2 AND EACH NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 2 to be duly executed and their respective corporate seals to be
hereunto fixed and attested as of the day and year first written above.
TYCO INTERNATIONAL GROUP S.A.
By:
-----------------------------
Name:
Title:
Attest:
By
----------------------------
Name:
Title:
TYCO INTERNATIONAL LTD.
By:
-----------------------------
Name:
Title:
Attest:
By
----------------------------
Name:
Title:
THE BANK OF NEW YORK, Trustee
By:
-----------------------------
Name:
Title:
Attest:
By
----------------------------
Name:
Title:
-5-
<PAGE>
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in
definitive registered form, this Note may not be transferred except as a whole
by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
TYCO INTERNATIONAL GROUP S.A.
6-3/8% NOTE DUE 2005
No.
$ CUSIP: 902118AB4
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), for
value received, hereby promises to pay to ______________________ or registered
assigns, the principal sum of ______________________ DOLLARS on June 15, 2005,
at the office or agency of the Issuer in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, and to pay semiannually on June 15 and December 15 of each year (each, an
"Interest Payment Date"; provided, however, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment Date
shall be the next succeeding Business Day but no additional interest shall be
paid in respect of such intervening period), commencing December 15, 1998, the
amount of interest on said principal sum at said office or agency, in like coin
or currency, at the rate per annum specified in the title of this Note, from
_______________ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for until said principal sum has been paid or
duly provided for. Interest shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. For purposes of this Note, "Business Day"
means any day other than a Saturday, a Sunday or a day on which banking
institutions in The City of New York are authorized or obligated by law,
regulation or executive order to be closed.
The interest payable on any Interest Payment Date which is punctually paid
or duly provided for on such Interest Payment Date will be paid to the Person in
whose name this Note is
<PAGE>
registered at the close of business on the June 1 or December 1 (in each case,
whether or not a Business Day), as the case may be (each, a "Regular Record
Date"), immediately preceding such Interest Payment Date. Interest payable on
this Note which is not punctually paid or duly provided for on any Interest
Payment Date therefor shall forthwith cease to be payable to the Person in whose
name this Note is registered at the close of business on the Regular Record Date
immediately preceding such Interest Payment Date, and such interest shall
instead be paid to the Person in whose name this Note is registered at the close
of business on the record date established for such payment by notice by or on
behalf of the Issuer to the Holders of the Notes mailed by first-class mail not
less than 15 days prior to such record date to their last addresses as they
shall appear upon the Security register, such record date to be not less than
five days preceding the date of payment of such defaulted interest. At the
option of the Issuer, interest on the Notes may be paid (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the
register of Holders of the Notes or (ii) at the expense of the Issuer, by wire
transfer to an account maintained by the Person entitled thereto as specified in
writing to the Trustee by such Person by the applicable record date of the
Notes.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to on the reverse hereof.
2
<PAGE>
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this
instrument to be signed by its duly authorized officers and has caused its
corporate seal to be affixed hereunto or imprinted hereon.
Dated:
TYCO INTERNATIONAL GROUP S.A.
[SEAL] By:________________________________
Title:
By:________________________________
Title:
Attest: ________________________
Name:
Title:
3
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: __________________________
Authorized Signatory
4
<PAGE>
GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Note the
payment of principal of, interest on and Additional Amounts in respect of the
Security upon which this Guarantee is endorsed in the amounts and at the time
when due and payable whether by declaration thereof, or otherwise, and interest
on the overdue principal and interest, if any, of such Note, if lawful, and the
payment or performance of all other obligations of the Issuer under the
Indenture or the Notes, to the holder of such Note and the Trustee, all in
accordance with and subject to the terms and limitations of such Note and
Article Thirteen of the Indenture. This Guarantee will not become effective
until the Trustee duly executes the certificate of authentication on this Note.
This Guarantee shall be governed by and construed in accordance with the laws of
the State of New York, without regard to conflict of law principles thereof.
Dated:
TYCO INTERNATIONAL LTD.
By:_________________________
Title:
Attest: __________________________
Name:
Title:
5
<PAGE>
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
6-3/8% NOTE DUE 2005
1. INDENTURE. (a) This Note is one of a duly authorized issue of notes
of the Issuer (hereinafter called the "Notes") of a series designated as the
6-3/8% Notes due 2005 of the Issuer, initially limited in aggregate principal
amount to $750,000,000, all issued or to be issued under and pursuant to an
indenture, dated as of June 9, 1998, as amended and supplemented by Supplemental
Indenture No. 2, dated as of June 9, 1998 (as so amended and supplemented, the
"Indenture"), among the Issuer, Tyco International Ltd. ("Tyco") and The Bank of
New York, as Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Issuer, Tyco, the Trustee and the Holders of the Notes.
(b) Other debentures, notes, bonds or other evidences of indebtedness
(together with the Notes, hereinafter called the "Securities") may be issued
under the Indenture in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary from the Notes and each other, as in the
Indenture provided.
(c) All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
2. AMENDMENTS AND WAIVERS. (a) The Indenture contains provisions
permitting the Issuer and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Securities of each such series; PROVIDED, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 4.1 of the Indenture or the amount thereof provable in
bankruptcy pursuant to Section 4.2 of the Indenture, or impair or affect the
rights of any Holder to institute suit for the payment thereof, without the
consent of the
6
<PAGE>
Holder of each Security so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each Security
affected.
(b) It is also provided in the Indenture that, with respect to
certain defaults or Events of Default regarding the Securities of any series,
prior to any declaration accelerating the maturity of such Securities, the
Holders of a majority in aggregate principal amount Outstanding of the
Securities of such series (or, in the case of certain defaults or Events of
Default, all or certain series of the Securities) may on behalf of the Holders
of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default in the payment of the principal of or premium, if any, or interest on
any of the Securities. Any such consent or waiver by the Holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Note and any
Notes which may be issued in exchange or substitution herefor, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.
3. OBLIGATION TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, Tyco or any other
obligor on the Notes, which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on this Note in the manner, at the respective
times, at the rate, at the place and in the coin or currency herein prescribed.
4. REDEMPTION. Except to the extent provided in Article Twelve of the
Indenture, this Note may not be redeemed prior to maturity.
5. CERTAIN COVENANTS. The Indenture restricts the Issuer's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Issuer is obliged to abide by certain covenants, including covenants limiting
the amount of liens it may incur, as well as its ability to enter into sale and
leaseback transactions, a covenant limiting the ability of its subsidiaries to
incur indebtedness, and a covenant requiring it to pay or discharge all taxes,
all as more fully described in the Indenture. All of such covenants are subject
to the covenant defeasance procedures outlined in the Indenture.
6. EFFECT OF EVENT OF DEFAULT. If an Event of Default shall have
occurred and be continuing under the Indenture, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
7. DEFEASANCE. The Indenture contains provisions for defeasance and
covenant defeasance at any time of the indebtedness on this Note upon compliance
by the Issuer with certain conditions set forth therein.
8. DENOMINATIONS; TRANSFER. (a) The Notes are issuable in registered
form without coupons in denominations of $1,000 and any multiple of $1,000 at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations provided in the
Indenture.
7
<PAGE>
(b) Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture. This Note may also be surrendered
for exchange at the aforesaid office or agency for Notes in other authorized
denominations in an equal aggregate principal amount. No service charge shall be
made for any registration of transfer or any exchange of the Notes, except that
the Issuer may require payment of any tax or other governmental charge imposed
in connection therewith.
(c) A certificate in global form representing all of a portion of the
Notes may not be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or any such nominee to a
successor Depositary for such Notes or a nominee of such successor Depositary.
9. HOLDER AS OWNER. The Issuer, Tyco, the Trustee and any authorized
agent of the Issuer, Tyco or the Trustee may deem and treat the registered
Holder hereof as the absolute owner of this Note (whether or not this Note shall
be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
principal hereof and, subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and none of the Issuer, Tyco or the Trustee
or any authorized agent of the Issuer, Tyco or the Trustee shall be affected by
any notice to the contrary.
10. NO LIABILITY OF CERTAIN PERSONS. No recourse under or upon any
obligation, covenant or agreement of the Issuer or Tyco in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, or any
past, present or future shareholder, officer or director, as such, of the
Issuer, Tyco or of any successor corporation of either of them, either directly
or through the Issuer, Tyco or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
11. GOVERNING LAW. The laws of the State of New York govern the Indenture
and this Note.
8
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto:
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF ASSIGNEE
_________________________________
_________________________________
_________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
the within Note of Tyco International Group S.A. and all rights thereunder and
hereby irrevocably constitutes and appoints such person attorney to transfer
such Note on the books of Tyco International Group S.A., with full power of
substitution in the premises.
Dated:
_______________________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE
SIGNATURE SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY,
A MEMBER ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY SUCH OTHER
ENTITY WHOSE SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO THE TRANSFER
AGENT.
9
<PAGE>
Exhibit 4.4
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE NO. 3
$500,000,000
7% Notes due 2028
THIS SUPPLEMENTAL INDENTURE NO. 3, dated as of June 9, 1998, among TYCO
INTERNATIONAL GROUP S.A., a Luxembourg company (the "Company"), TYCO
INTERNATIONAL LTD., a Bermuda company ("Tyco") and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the 'Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and Tyco have heretofore executed and delivered to the
Trustee an Indenture, dated as of June 9, 1998 (the "Indenture"), providing for
the issuance from time to time of one or more series of the Company's
Securities;
WHEREAS, Article Seven of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture; and
WHEREAS, Section 7.1(e) of the Indenture provides that the Company, Tyco
and the Trustee may enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as permitted by
Sections 2.1 and 2.4 of the Indenture.
NOW THEREFORE:
In consideration of the premises and the issuance of the series of
Securities provided for herein, the Company, Tyco and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders of the Securities of such series as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1 This Supplemental Indenture No. 3 constitutes an integral
part of the Indenture.
SECTION 1.2 For all purposes of this Supplemental Indenture No. 3:
<PAGE>
(a) capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 3; and
(c) the terms "HEREIN", "HEREOF", "HEREUNDER" and other words of
similar import refer to this Supplemental Indenture No. 3.
SECTION 1.3. The following definitions shall apply to this Supplemental
Indenture No. 3:
"ADJUSTED REDEMPTION TREASURY RATE" means, with respect to any redemption
date, the annual rate equal to the semiannual equivalent yield to maturity or
interpolated (on a 30/360 day count basis) yield to maturity of the Comparable
Redemption Treasury Issue, assuming a price for the Comparable Redemption
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Redemption Treasury Price for such redemption date.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or obligated
by law, executive order or governmental decree to be closed.
"COMPARABLE REDEMPTION TREASURY ISSUE" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Notes to be redeemed that will be utilized at the time of
selection and in accordance with customary financial practice in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes.
"COMPARABLE REDEMPTION TREASURY PRICE" means, with respect to any
redemption date, (i) the average of the Redemption Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest such
Redemption Reference Treasury Dealer Quotations (unless there is more than one
highest or lowest quotation, in which case only one such highest and/or lowest
quotation shall be excluded), or (ii) if the Quotation Agent obtains fewer than
four such Redemption Reference Treasury Dealer Quotations, the average of all
such Redemption Reference Treasury Dealer Quotations.
"QUOTATION AGENT" means a Redemption Reference Treasury Dealer appointed
as such agent by the Company.
"REDEMPTION REFERENCE TREASURY DEALER" means each of J.P. Morgan
Securities Inc. and four other primary U.S. Government securities dealers in The
City of New York selected by the Company.
"REDEMPTION REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to
each Redemption Reference Treasury Dealer and any redemption date, the offer
price for the Comparable Redemption Treasury Issue (expressed in each case as a
percentage of its principal
-2-
<PAGE>
amount) for settlement on the redemption date quoted in writing to the Quotation
Agent by such Redemption Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such redemption date.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 TITLE OF THE SECURITIES. There shall be a series of
Securities designated as the "7% Notes due 2028" (the "Notes").
SECTION 2.2 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT; DATE OF NOTES.
The aggregate principal amount of the Notes shall not initially exceed
$500,000,000. Each Note shall be dated the date of its authentication.
SECTION 2.3 PRINCIPAL PAYMENT DATE. Subject to the provisions of
Section 2.6 hereof and Articles Four and Twelve of the Indenture, the principal
of the Notes shall be become due and payable in a single installment on June 15,
2028.
SECTION 2.4 INTEREST AND INTEREST RATES. Interest on the Notes shall be
payable semiannually on June 15 and December 15 of each year beginning on
December 15, 1998 (each, an "Interest Payment Date"); PROVIDED, HOWEVER, that if
an Interest Payment Date would otherwise be a day that is not a Business Day,
such Interest Payment Date shall be the next succeeding Business Day, and no
additional interest shall be paid in respect of such intervening period.
The interest payable on each Interest Payment Date shall be the amount of
interest accrued from June 9, 1998 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, as the case may be, until
the principal amount of the Notes has been paid or duly provided for. Interest
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
The interest rate borne by the Notes will be 7% per annum until the Notes
are paid in full.
The interest payable on any Note which is punctually paid or duly provided
for on any Interest Payment Date shall be paid to the Person in whose name such
Note is registered at the close of business on the June 1 or December 1 (in each
case, whether or not a Business Day), respectively, immediately preceding such
Interest Payment Date (each, a "Regular Record Date"). Interest payable on any
Note which is not punctually paid or duly provided for on any Interest Payment
Date therefor shall forthwith cease to be payable to the Person in whose name
such Note is registered at the close of business on the Regular Record Date
immediately preceding such Interest Payment Date, and such interest shall
instead be paid to the Person in whose name such Note is registered at the close
of business on the record date established for such payment by notice by or on
behalf of the Company to the Holders of the Notes mailed by first-class mail not
less than 15 days prior to such record date to their last addresses as they
shall appear upon the
-3-
<PAGE>
Security register, such record date to be not less than five days preceding the
date of payment of such defaulted interest.
SECTION 2.5 PLACE OF PAYMENT. The place of payment where the Notes may
be presented or surrendered for payment, where the principal of and interest and
any other payments due on the Notes are payable, where the Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Notes and the Indenture may be
served shall be in the Borough of Manhattan, The City of New York, and the
office or agency maintained by the Company for such purpose shall initially be
the Corporate Trust Office of the Trustee.
At the option of the Company, interest on the Notes may be paid (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Holders of the Notes or (ii) at the expense of the
Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in writing to the Trustee by such Person by the applicable
record date.
SECTION 2.6 REDEMPTION. The Notes are redeemable, in whole or in part,
at the option of the Company at any time at a redemption price equal to the
greater of (i) 100% of the principal amount of such Notes, and (ii) as
determined by the Quotation Agent, the sum of the present values of the
remaining scheduled payments of principal and interest thereon (not including
any portion of such payments of interest accrued as of the date of redemption)
discounted to the date of redemption on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Redemption Treasury
Rate plus 15 basis points plus, in each case, accrued interest thereon to the
date of redemption.
The Notes are also subject to redemption to the extent described in Article
Twelve of the Indenture.
The Company shall have no obligation to redeem or purchase the Notes
pursuant to any sinking fund or analogous provisions or upon the happening of
any specified event or at the option of any Holder of the Notes.
SECTION 2.7 DENOMINATION. The Notes shall be issued in denominations of
$1,000 and integral multiples thereof.
SECTION 2.8 CURRENCY. Principal and interest on the Notes shall be
payable in United States dollars.
SECTION 2.9 NOTES TO BE ISSUED IN GLOBAL FORM; EXCHANGE FOR CERTIFICATED
NOTES. The Notes will be initially represented by one or more Notes in global
from (the "Global Note"). The Company hereby designates The Depository Trust
Company as the initial Depositary for the Global Note. The Global Note will be
deposited with the Trustee, as custodian for the Depositary. Unless and until
it is exchanged in whole or in part for Notes in certificated form, the Global
Note 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
-4-
<PAGE>
Depositary or by the Depositary or any such nominee to a successor Depositary
for the Notes or a nominee of such successor Depositary. The Depositary may
surrender the Global Note in exchange in whole or in part for Notes in
certificated form on such terms as are acceptable to the Company and Depositary.
The Company may at any time in its sole discretion determine that all or any
portion of the Notes shall no longer be represented by a Note or Notes in global
form. In such event the Company shall execute, and the Trustee, upon receipt of
a written Company order (pursuant to Section 2.5 of the Indenture) for the
authentication and delivery of certificated Notes of like tenor, shall
authenticate and deliver Notes of like tenor in certificated form, in authorized
denominations and in an aggregate principal amount equal to the applicable
principal amount of the Global Note, in exchange for such Global Note (or the
applicable portion thereof).
SECTION 2.10 FORM OF NOTES. The Notes shall be substantially in the form
attached as Exhibit A hereto.
SECTION 2.11 DEFEASANCE AND COVENANT DEFEASANCE. The provisions of
Article Nine of the Indenture shall apply to the Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 The Indenture, as supplemented and amended by this
Supplemental Indenture No. 3, is in all respects hereby adopted, ratified and
confirmed.
SECTION 3.2 This Supplemental Indenture No. 3 may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original; and all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.3 THIS SUPPLEMENTAL INDENTURE NO. 3 AND EACH NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 3 to be duly executed and their respective corporate seals to be
hereunto fixed and attested as of the day and year first written above.
TYCO INTERNATIONAL GROUP S.A.
By:
-----------------------------
Name:
Title:
Attest:
By
----------------------------
Name:
Title:
TYCO INTERNATIONAL LTD.
By:
-----------------------------
Name:
Title:
Attest:
By
----------------------------
Name:
Title:
THE BANK OF NEW YORK, Trustee
By:
-----------------------------
Name:
Title:
Attest:
By
----------------------------
Name:
Title:
-6-
<PAGE>
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in
definitive registered form, this Note may not be transferred except as a whole
by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
TYCO INTERNATIONAL GROUP S.A.
7% NOTE DUE 2028
No.
$ CUSIP: 902118AC2
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), for
value received, hereby promises to pay to ____________________ or registered
assigns, the principal sum of _______________________ DOLLARS on June 15, 2028,
at the office or agency of the Issuer in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, and to pay semiannually on June 15 and December 15 of each year (each, an
"Interest Payment Date"; provided, however, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment Date
shall be the next succeeding Business Day but no additional interest shall be
paid in respect of such intervening period), commencing December 15, 1998, the
amount of interest on said principal sum at said office or agency, in like coin
or currency, at the rate per annum specified in the title of this Note, from
_________ or from the most recent Interest Payment Date to which interest has
been paid or duly provided for until said principal sum has been paid or duly
provided for. Interest shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. For purposes of this Note, "Business Day"
means any day other than a Saturday, a Sunday or a day on which banking
institutions in The City of New York are authorized or obligated by law,
regulation or executive order to be closed.
The interest payable on any Interest Payment Date which is punctually paid
or duly provided for on such Interest Payment Date will be paid to the Person in
whose name this Note is
<PAGE>
registered at the close of business on the June 1 or December 1 (in each case,
whether or not a Business Day), as the case may be (each, a "Regular Record
Date"), immediately preceding such Interest Payment Date. Interest payable on
this Note which is not punctually paid or duly provided for on any Interest
Payment Date therefor shall forthwith cease to be payable to the Person in whose
name this Note is registered at the close of business on the Regular Record Date
immediately preceding such Interest Payment Date, and such interest shall
instead be paid to the Person in whose name this Note is registered at the close
of business on the record date established for such payment by notice by or on
behalf of the Issuer to the Holders of the Notes mailed by first-class mail not
less than 15 days prior to such record date to their last addresses as they
shall appear upon the Security register, such record date to be not less than
five days preceding the date of payment of such defaulted interest. At the
option of the Issuer, interest on the Notes may be paid (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the
register of Holders of the Notes or (ii) at the expense of the Issuer, by wire
transfer to an account maintained by the Person entitled thereto as specified in
writing to the Trustee by such Person by the applicable record date of the
Notes.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to on the reverse hereof.
2
<PAGE>
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this
instrument to be signed by its duly authorized officers and has caused its
corporate seal to be affixed hereunto or imprinted hereon.
Dated:
TYCO INTERNATIONAL GROUP S.A.
[SEAL] By:________________________________
Title:
By:________________________________
Title:
Attest: ________________________
Name:
Title:
3
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: __________________________
Authorized Signatory
4
<PAGE>
GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely, unconditionally
and irrevocably guarantees to the holder of this Note the payment of principal
of, interest on and Additional Amounts in respect of the Security upon which
this Guarantee is endorsed in the amounts and at the time when due and payable
whether by declaration thereof, or otherwise, and interest on the overdue
principal and interest, if any, of such Note, if lawful, and the payment or
performance of all other obligations of the Issuer under the Indenture or the
Notes, to the holder of such Note and the Trustee, all in accordance with and
subject to the terms and limitations of such Note and Article Thirteen of the
Indenture. This Guarantee will not become effective until the Trustee duly
executes the certificate of authentication on this Note. This Guarantee shall
be governed by and construed in accordance with the laws of the State of New
York, without regard to conflict of law principles thereof.
Dated:
TYCO INTERNATIONAL LTD.
By:______________________________
Title:
Attest: __________________________
Name:
Title:
5
<PAGE>
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
7% NOTE DUE 2028
1. INDENTURE. (a) This Note is one of a duly authorized issue of notes
of the Issuer (hereinafter called the "Notes") of a series designated as the 7%
Notes due 2028 of the Issuer, initially limited in aggregate principal amount to
$500,000,000, all issued or to be issued under and pursuant to an indenture,
dated as of June 9, 1998, as amended and supplemented by Supplemental Indenture
No. 3, dated as of June 9, 1998 (as so amended and supplemented, the
"Indenture"), among the Issuer, Tyco International Ltd. ("Tyco") and The Bank of
New York, as Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Issuer, Tyco, the Trustee and the Holders of the Notes.
(b) Other debentures, notes, bonds or other evidences of indebtedness
(together with the Notes, hereinafter called the "Securities") may be issued
under the Indenture in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary from the Notes and each other, as in the
Indenture provided.
(c) All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
2. AMENDMENTS AND WAIVERS. (a) The Indenture contains provisions
permitting the Issuer and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Securities of each such series; PROVIDED, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 4.1 of the Indenture or the amount thereof provable in
bankruptcy pursuant to Section 4.2 of the Indenture, or impair or affect the
rights of any Holder to institute suit for the payment thereof, without the
consent of the
6
<PAGE>
Holder of each Security so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each Security
affected.
(b) It is also provided in the Indenture that, with respect to
certain defaults or Events of Default regarding the Securities of any series,
prior to any declaration accelerating the maturity of such Securities, the
Holders of a majority in aggregate principal amount Outstanding of the
Securities of such series (or, in the case of certain defaults or Events of
Default, all or certain series of the Securities) may on behalf of the Holders
of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default in the payment of the principal of or premium, if any, or interest on
any of the Securities. Any such consent or waiver by the Holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Note and any
Notes which may be issued in exchange or substitution herefor, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.
3. OBLIGATION TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, Tyco or any other
obligor on the Notes, which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on this Note in the manner, at the respective
times, at the rate, at the place and in the coin or currency herein prescribed.
4. REDEMPTION. This Note may be redeemed, in whole or in part, at the
option of the Issuer at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of this Note, and (ii) as determined by the
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such
payments of interest accrued as of the date of redemption) discounted to the
date of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Redemption Treasury Rate plus 15 basis
points plus, in each case, accrued interest thereon to the date of redemption.
This Note is also subject to redemption to the extent provided in Article Twelve
of the Indenture.
"ADJUSTED REDEMPTION TREASURY RATE" means, with respect to any redemption
date, the annual rate equal to the semiannual equivalent yield to maturity or
interpolated (on a 30/360 day count basis) yield to maturity of the Comparable
Redemption Treasury Issue, assuming a price for the Comparable Redemption
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Redemption Treasury Price for such redemption date.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or obligated
by law, executive order or governmental decree to be closed.
"COMPARABLE REDEMPTION TREASURY ISSUE" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Notes to be redeemed that will be utilized at the time of
selection and in accordance with
7
<PAGE>
customary financial practice in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of such Notes.
"COMPARABLE REDEMPTION TREASURY PRICE" means, with respect to any
redemption date, (i) the average of the Redemption Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest such
Redemption Reference Treasury Dealer Quotations (unless there is more than one
highest or lowest quotation, in which case only one such highest and/or lowest
quotation shall be excluded), or (ii) if the Quotation Agent obtains fewer than
four such Redemption Reference Treasury Dealer Quotations, the average of all
such Redemption Reference Treasury Dealer Quotations.
"QUOTATION AGENT" means a Redemption Reference Treasury Dealer appointed
as such agent by the Company.
"REDEMPTION REFERENCE TREASURY DEALER" means each of J.P. Morgan
Securities Inc. and four other primary U.S. Government securities dealers in The
City of New York selected by the Company.
"REDEMPTION REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to
each Redemption Reference Treasury Dealer and any redemption date, the offer
price for the Comparable Redemption Treasury Issue (expressed in each case as a
percentage of its principal amount) for settlement on the redemption date quoted
in writing to the Quotation Agent by such Redemption Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day preceding such
redemption date.
5. CERTAIN COVENANTS. The Indenture restricts the Issuer's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Issuer is obliged to abide by certain covenants, including covenants limiting
the amount of liens it may incur, as well as its ability to enter into sale and
leaseback transactions, a covenant limiting the ability of its subsidiaries to
incur indebtedness, and a covenant requiring it to pay or discharge all taxes,
all as more fully described in the Indenture. All of such covenants are subject
to the covenant defeasance procedures outlined in the Indenture.
6. EFFECT OF EVENT OF DEFAULT. If an Event of Default shall have
occurred and be continuing under the Indenture, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
7. DEFEASANCE. The Indenture contains provisions for defeasance and
covenant defeasance at any time of the indebtedness on this Note upon compliance
by the Issuer with certain conditions set forth therein.
8. DENOMINATIONS; TRANSFER. (a) The Notes are issuable in registered
form without coupons in denominations of $1,000 and any multiple of $1,000 at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations provided in the
Indenture.
8
<PAGE>
(b) Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture. This Note may also be surrendered
for exchange at the aforesaid office or agency for Notes in other authorized
denominations in an equal aggregate principal amount. No service charge shall be
made for any registration of transfer or any exchange of the Notes, except that
the Issuer may require payment of any tax or other governmental charge imposed
in connection therewith.
(c) A certificate in global form representing all of a portion of the
Notes may not be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or any such nominee to a
successor Depositary for such Notes or a nominee of such successor Depositary.
9. HOLDER AS OWNER. The Issuer, Tyco, the Trustee and any authorized
agent of the Issuer, Tyco or the Trustee may deem and treat the registered
Holder hereof as the absolute owner of this Note (whether or not this Note shall
be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
principal hereof and, subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and none of the Issuer, Tyco or the Trustee
or any authorized agent of the Issuer, Tyco or the Trustee shall be affected by
any notice to the contrary.
10. NO LIABILITY OF CERTAIN PERSONS. No recourse under or upon any
obligation, covenant or agreement of the Issuer or Tyco in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, or any
past, present or future shareholder, officer or director, as such, of the
Issuer, Tyco or of any successor corporation of either of them, either directly
or through the Issuer, Tyco or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
11. GOVERNING LAW. The laws of the State of New York govern the Indenture
and this Note.
9
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto:
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF ASSIGNEE
_________________________________
_________________________________
_________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
the within Note of Tyco International Group S.A. and all rights thereunder and
hereby irrevocably constitutes and appoints such person attorney to transfer
such Note on the books of Tyco International Group S.A., with full power of
substitution in the premises.
Dated:
_______________________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE SIGNATURE SHOULD BE
GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER ORGANIZATION OF A
NATIONAL STOCK EXCHANGE OR BY SUCH OTHER ENTITY WHOSE SIGNATURE IS ON FILE WITH
AND ACCEPTABLE TO THE TRANSFER AGENT.
10
<PAGE>
Exhibit 4.5
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE NO. 4
$750,000,000
6 1/4% Dealer remarketable securities-SM- ("Drs.-SM-") due June 15 2013
THIS SUPPLEMENTAL INDENTURE NO. 4, dated as of June 9, 1998, among TYCO
INTERNATIONAL GROUP S.A., a Luxembourg company (the "Company"), TYCO
INTERNATIONAL LTD., a Bermuda company ("Tyco"), and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the 'Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and Tyco have heretofore executed and delivered to
the Trustee an Indenture, dated as of June 9, 1998 (the "Indenture"), providing
for the issuance from time to time of one or more series of the Company's
Securities;
WHEREAS, Article Seven of the Indenture provides for various matters
with respect to any series of Securities issued under the Indenture to be
established in an indenture supplemental to the Indenture; and
WHEREAS, Section 7.1(e) of the Indenture provides that the Company,
Tyco and the Trustee may enter into an indenture supplemental to the Indenture
to establish the form or terms of Securities of any series as permitted by
Sections 2.1 and 2.4 of the Indenture.
NOW THEREFORE:
In consideration of the premises and the issuance of the series of
Securities provided for herein, the Company, Tyco and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders of the Securities of such series as follows:
<PAGE>
ARTICLE 1
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01. Integral Part of Indenture. This Supplemental Indenture
No. 4 constitutes an integral part of the Indenture.
SECTION 1.02. Defined Terms and References from Indenture. For all
purposes of this Supplemental Indenture No. 4:
(a) capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture No. 4;
(c) the terms "herein", "hereof", "hereunder" and other words of
similar import refer to this Supplemental Indenture No. 4; and
(d) "Business Day" means any day other than a Saturday, a Sunday or a
day on which banking institutions in The City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
ARTICLE 2
THE SERIES OF DEBT SECURITIES
SECTION 2.01. Title of the Securities. There shall be a series of
Securities designated as the "6 1/4% Dealer remarketable securities due 2013"
(the "Drs.").
SECTION 2.02. Limitation on Aggregate Principal Amount; Date of Drs.
The aggregate principal amount of the Drs. shall not exceed $750,000,000. Each
security shall be dated the date of its authentication.
SECTION 2.03. Principal Payment Date. Subject to the provisions of
Section 2.06 hereof and Articles Four and Twelve of the Indenture, the final
maturity date is and the principal amount of the Drs. shall be become due and
payable in a single installment on June 15, 2013.
SECTION 2.04. Interest and Interest Rates. (a) Interest on the Drs.
shall be payable semiannually on June 15 and December 15 of each year beginning
on
2
<PAGE>
December 15, 1998 (each, an "Interest Payment Date"); provided, however, that if
an Interest Payment Date would otherwise be a day that is not a Business Day,
such Interest Payment Date shall be the next succeeding Business Day.
(b) The interest payable on each Interest Payment Date shall be the
amount of interest accrued from June 9, 1998 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, until the principal amount of the Drs. has been paid or duly provided
for. Interest shall be computed on the basis of a 360-day year consisting of
twelve 30- day months.
(c) The interest rate borne by the Drs. is set forth in the form of
the Drs. attached as Exhibit A hereto.
(d) The interest payable on any Drs. which is punctually paid or duly
provided for on any Interest Payment Date shall be paid to the Person in whose
name such Drs. is registered at the close of business on the June 1 or December
1 (in each case, whether or not a Business Day), respectively, immediately
preceding such Interest Payment Date (each, a "Regular Record Date"). Interest
payable on any Drs. which is not punctually paid or duly provided for on any
Interest Payment Date therefor shall forthwith cease to be payable to the Person
in whose name such Drs. is registered at the close of business on the Regular
Record Date immediately preceding such Interest Payment Date, and such interest
shall instead be paid to the Person in whose name such Drs. is registered at the
close of business on the record date established for such payment by notice by
or on behalf of the Company to the Holders of the Drs. mailed by first-class
mail not less than 15 days prior to such record date to their last addresses as
they shall appear upon the Security register, such record date to be not less
than five days preceding the date of payment of such defaulted interest.
SECTION 2.05. Place of Payment. (a) The place of payment where the
Drs. may be presented or surrendered for payment, where the principal of and
interest and any other payments due on the Drs. are payable, where the Drs. may
be surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Drs. and the Indenture may
be served shall be in the Borough of Manhattan, The City of New York, and the
office or agency maintained by the Company for such purpose shall initially be
the Corporate Trust Office of the Trustee.
(b) At the option of the Company, interest on the Drs. may be paid (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the register of Holders of the Drs. or (ii) at the expense of
the Company,
3
<PAGE>
by wire transfer to an account maintained by the Person entitled thereto as
specified in writing to the Trustee by such Person by the applicable record
date.
SECTION 2.06. Redemption. (a) The Drs. are subject to redemption as
described in the form of the Drs. attached as Exhibit A hereto.
(b) The Drs. are also subject to redemption to the extent described in
Article Twelve of the Indenture.
(c) The Company shall have no obligation to redeem or purchase the
Drs. pursuant to any sinking fund or analogous provisions or upon the happening
of any specified event or at the option of any Holder of the Drs..
SECTION 2.07. Denomination. The Drs. shall be issued in denominations
of $1,000 and integral multiples thereof.
SECTION 2.08. Currency. Principal and interest on the Drs. shall be
payable in United States dollars.
SECTION 2.09. Drs. to Be Issued in Global Form. The Drs. will be
initially represented by one or more securities in global from (the "Global
Securities"). The Company hereby designates The Depository Trust Company as the
initial Depositary for the Global Securities. The Global Securities will be
deposited with the Trustee, as custodian for the Depositary. Unless and until it
is exchanged in whole or in part for Drs. in certificated form, the Global
Securities 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 for the Drs. or a nominee of such successor Depositary. The
Depositary may surrender the Global Securities in exchange in whole or in part
for Drs. in certificated form on such terms as are acceptable to the Company and
Depositary.
SECTION 2.10. Form of Drs.. The Drs. shall be substantially in the form
attached as Exhibit A hereto.
SECTION 2.11. Defeasance and Covenant Defeasance. The provisions of
Article Nine of the Indenture shall apply to the Drs.
4
<PAGE>
ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.01. Adoption of Indenture. The Indenture, as supplemented and
amended by this Supplemental Indenture No. 4, is in all respects hereby adopted,
ratified and confirmed.
SECTION 3.02. Execution. This Supplemental Indenture No. 4 may be
executed in any number of counterparts, each of which when so executed shall be
deemed an original; and all such counterparts shall together constitute but one
and the same instrument.
SECTION 3.03. Governing Law. THIS SUPPLEMENTAL INDENTURE NO. 4 AND EACH
Drs. SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 4 to be duly executed and their respective corporate seals to be
hereunto fixed and attested as of the day and year first written above.
TYCO INTERNATIONAL GROUP S.A.
By:
------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title:
TYCO INTERNATIONAL LTD.
By:
------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK, Trustee
By:
------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title:
6
<PAGE>
EXHIBIT A
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
TYCO INTERNATIONAL GROUP S.A.
6 1/4% Dealer remarketable security(sm) ("Drs.(sm)")
due June 15, 2013
No.
$ CUSIP:
--------- --------
Tyco International Group S.A., a Luxembourg company (hereinafter called
the "Company"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of U.S. DOLLARS on June 15, 2013, at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, State of New York, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semi-annually on June 15 and
December 15 of each year (each, an "Interest Payment Date"), on said principal
sum at the rate per annum specified below, at such office or agency, in like
coin or currency, from the June 15 or December 15, as the case may be, to which
interest on the Securities has been paid preceding the date hereof (unless the
date hereof is a June 15 or a December 15 to which interest has been paid, in
which case from the date hereof, or unless the date hereof is prior to any
interest having been paid, in which case from June 9, 1998) until payment of
said principal sum has been made or duly provided for. If the Company shall
default in the payment of interest when due on such June 15 or December 15, then
this Security shall bear interest from the next preceding date to which interest
has been paid, or, if no interest has been paid, from June 9, 1998. The interest
so payable on any June 15 or December 15 shall be paid to the person in whose
name this Security shall be registered at the close of business on June 1 or
December 1 (whether or not a Business Day) immediately preceding the related
Interest Payment Date (each, a "Regular Record Date"). For purposes of this
Security, "Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
- ---------------------------
"Dealer remarketable security" and "Drs." are service marks of J.P. Morgan
Securities Inc.
<PAGE>
If and to the extent the Company shall default in the payment of the
interest due on any interest payment date, such defaulted interest shall be paid
to the person in whose name this Security is registered at the close of business
on a record date established for such payment by notice by or on behalf of the
Company to the holders of the Securities mailed by first-class mail not less
than fifteen days prior to such record date to their last address as they shall
appear upon the Security register, such record date to be not less than five
days preceding the date of payment of such defaulted interest. At the option of
the Company, the Company may pay interest (a) by check mailed to the holder's
address as it appears on the Security register or (b) at the expense of the
company by wire transfer to an account maintained by the holder entitled thereto
as specified in writing by the Trustee by such holder by the applicable record
date.
The rate of interest on this Security shall be 6 1/4% per annum to June
15, 2003 (the "Remarketing Date"). If the Remarketing Dealer elects to remarket
the Securities pursuant to the Remarketing Agreement dated as of June 9, 1998
(the "Remarketing Agreement") between J.P. Morgan Securities Inc., as
Remarketing Dealer (the "Remarketing Dealer"), and the Company, then, except as
otherwise set forth on the reverse hereof, (i) this Security shall be subject to
mandatory tender to the Remarketing Dealer for remarketing on the Remarketing
Date, on the terms and subject to the conditions set forth on the reverse
hereof, and (ii) on and after the Remarketing Date, this Security shall bear
interest at the rate determined by the Remarketing Dealer in accordance with the
procedures set forth in Section 4 on the reverse hereof (the "Interest Rate to
Maturity"). If the Remarketing Dealer does not remarket the Securities pursuant
to the Remarketing Agreement, this Security shall be subject to mandatory tender
to the Company for repurchase on the Remarketing Date, on the terms and subject
to the conditions set forth on the reverse hereof.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been executed by the
Trustee under the Indenture referred to on the reverse hereof.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Security to be signed
by its duly authorized officers and has caused its corporate seal to be affixed
hereunto.
TYCO INTERNATIONAL GROUP S.A.
By:
------------------------------
Managing Director
By:
------------------------------
Managing Director
Attest:
- -------------------------
Managing Director
<PAGE>
GUARANTEE
For value received, Tyco International Ltd. (the "Guarantor") hereby
absolutely, unconditionally and irrevocably guarantees to the holder of this
Security the payment of principal of, interest on and Additional Amounts (as
defined in the Indenture) 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 Company 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 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 the conflict of law principles thereof.
Dated: June 9, 1998
TYCO INTERNATIONAL LTD.
By:
------------------------------
Title:
Attest:
---------------------------
Name:
Title:
<PAGE>
Certificate of Authentication
This is one of the Securities of the series designated therein and described in
the within mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By:
------------------------------
Authorized Signatory
<PAGE>
Tyco International Group S.A.
6 1/4% Dealer remarketable security(sm) ("Drs.(sm)")
due June 15, 2013
1. Indenture. (a) This Security is one of the duly authorized issue of
debt securities of the Company (herein referred to as the "Debt Securities") of
the series hereinafter specified, all issued or to be issued under and pursuant
to an indenture dated as of June 9, 1998 between the Company and The Bank of New
York, as Trustee (herein referred to as the "Trustee"), as supplemented by
Supplemental Indenture No. 4 dated as of June 9, 1998 (as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders (the words "holders", "holder", "Security holders" or "Security
holder" mean the registered holder(s)) of the Debt Securities.
(b) The Debt Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at different rates, may be
denominated in different currencies, may be subject to different redemption
provisions, if any, may be subject to different sinking funds, if any, may be
subject to additional covenants and Events of Default and may otherwise vary as
provided in the Indenture. This Security is one of the series designated as the
6 1/4% Dealer remarketable securities(sm) ("Drs.(sm)") due June 15, 2013 of the
Company and such series is limited in aggregate principal amount to
$750,000,000. References herein to "Securities" or "Drs." shall mean the Debt
Securities of said series.
(c) All capitalized terms used in this Security which are defined in
the Indenture and not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
2. Mandatory Tender on Remarketing Date; Purchase and Settlement. On a
Business Day not later than ten Business Days prior to the Remarketing Date (the
"Notification Date"), the Remarketing Dealer will notify the Company and the
Trustee as to whether it elects to purchase all (but not less than all) of the
outstanding Drs. on the Remarketing Date. If, and only if, the Remarketing
Dealer so elects, the Drs. shall be subject to mandatory tender to the
Remarketing Dealer for purchase and remarketing on the Remarketing Date, upon
the terms and subject to the conditions described herein and in the Remarketing
Agreement. The purchase price of the Drs. shall be equal to 100% of the
principal amount thereof. No holder or beneficial owner of any Securities shall
have any rights or claims under the Remarketing Agreement or against the Company
or the Remarketing Dealer as a result of the Remarketing Dealer not purchasing
such Securities.
3. Maintenance of Book-Entry System. (a) The tender and settlement
procedures with respect to the Securities set forth in the Remarketing Agreement
shall be subject to modification, without the consent of the holders of the
Securities, to the extent required by DTC
R-1
<PAGE>
or, if the book-entry system is no longer available for the Securities at the
time of the remarketing, to the extent required to facilitate the tendering and
remarketing of Securities in certificated form. In addition, the Remarketing
Dealer may modify the settlement procedures without the consent of the holders
of the Securities in order to facilitate the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of
Securities that (i) at all times, it will use its best efforts to maintain the
Securities in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Securities in
book-entry form and (ii) it waives any discretionary right that it otherwise may
have under the Indenture to cause the Securities to be issued in certificated
form.
4. Determination of Interest Rate to Maturity; Notification Thereof.
The Remarketing Dealer shall determine the interest rate the Drs. will bear from
the Remarketing Date to the Stated Maturity Date (the "Interest Rate to
Maturity") on the third Business Day immediately preceding the Remarketing Date
(the "Determination Date") by soliciting by 2:00 p.m., New York City time, the
Reference Corporate Dealers (defined below) for firm, committed bids to purchase
all outstanding Drs. at the Dollar Price (defined below), and by selecting the
lowest such firm, committed bid (regardless of whether each of the Reference
Corporate Dealers actually submit bids). Each bid shall be expressed in terms of
the Interest Rate to Maturity that the Drs. would bear (quoted as a spread over
5.55% per annum (the "Base Rate")) based on the following assumptions:
(i) the Drs. would be sold to such Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date; and
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi annually on the interest payment dates for
the Drs.
J.P. Morgan Securities Inc., in its capacity as a Reference Corporate Dealer,
agrees that it will submit a firm, committed bid in connection with the
solicitation by the Remarketing Dealer for bids to determine the Interest Rate
to Maturity. The Interest Rate to Maturity announced by the Remarketing Dealer
as a result of such process will be quoted to the nearest one hundred-thousandth
(0.00001) of one percent per annum and, absent manifest error, will be binding
and conclusive upon holders of the Drs., the Company and the Trustee. The
Remarketing Dealer shall have the discretion to select the time at which the
Interest Rate to Maturity is determined on the Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account (at a price equal to the lowest
firm, committed bid, as described above) or (ii) sell the Drs. to the Reference
Corporate Dealer submitting the lowest firm,
R-2
<PAGE>
committed, bid. If two or more Reference Corporate Dealers submit equivalent
bids which constitute the lowest firm, committed bid, the Remarketing Dealer may
in its sole discretion elect to sell the Drs. to any such Reference Corporate
Dealer.
If the Remarketing Dealer has elected to remarket the Drs. as provided
herein, then it shall notify the Company, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 3:30 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the Drs. effective from and
including the Remarketing Date.
"Dollar Price" means the discounted present value to the Remarketing
Date of the cash flows on a bond (x) with a principal amount equal to the
aggregate principal amount of the Drs., (y) maturing on the Stated Maturity Date
and (z) bearing interest from the Remarketing Date, payable semi-annually
(assuming a 360-day year consisting of twelve 30-day months) on the interest
payment dates of the Drs. at a rate equal to the Base Rate, using a discount
rate equal to the Treasury Rate (defined below).
"Reference Corporate Dealer" means J.P. Morgan Securities Inc. and four
other leading dealers of publicly-traded debt securities of the Company to be
chosen by the Remarketing Dealer.
"Treasury Rate" means the annual rate equal to the semi-annual
equivalent yield to maturity or interpolated (on a 30/360 day count basis) yield
to maturity on the Determination Date of the Comparable Treasury Issue (defined
below) for value on the Remarketing Date, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price (as defined below).
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual maturity on the
Determination Date (or the United States Treasury securities selected by the
Remarketing Dealer to derive an interpolated yield to maturity on such
Determination Date) comparable to the remaining term of the Drs.
"Comparable Treasury Price" means (a) the offer price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) on
the Determination Date, as set forth on Telerate Page 500 (as defined below),
adjusted to reflect settlement on the Remarketing Date if prices quoted on
Telerate Page 500 are for settlement on any date other than the Remarketing
Date, or (b) if such page (or any successor page) is not displayed or does not
contain such offer prices on such Business Day, (i) the average of such
Reference Treasury Dealer Quotations for such Remarketing Date, after excluding
the highest and lowest of such Reference Treasury Dealer Quotations (unless
there is more than one highest or lowest quotation, in which case only one such
highest and/or lowest quotation shall be excluded), or (ii) if the Remarketing
Dealer obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Dealer Quotations. The Remarketing Dealer
shall have the discretion to
R-3
<PAGE>
select the time at which the Comparable Treasury Price is determined on the
Determination Date and the number of Reference Treasury Dealer Quotations to be
obtained.
"Telerate Page 500" means the display designated as "Telerate Page 500"
on Dow Jones Markets Limited (or such other page as may replace Telerate Page
500 on such service) or such other service displaying the offer price specified
in clause (a) of the definition of Comparable Treasury Price as may replace Dow
Jones Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer, the offer price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) for settlement on the
Remarketing Date, quoted in writing to the Remarketing Dealer by such Reference
Treasury Dealer by 2:00 p.m., New York City time, on the Determination Date.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
5. Repurchase. If the Remarketing Dealer does not purchase all of the
Drs. on the Remarketing Date, then holders of any Drs. not so purchased will be
required to tender, and the Company shall repurchase, on the Remarketing Date,
at a price equal to 100% of the principal amount of the Drs. plus all accrued
interest, if any, on the Drs. to (but excluding) the Remarketing Date, all Drs.
that have not been purchased by the Remarketing Dealer on the Remarketing Date.
6. Redemption. If the Remarketing Dealer has elected to remarket the
Drs. on the Remarketing Date, the Company shall have the right to redeem the
Drs., in whole but not in part, from the Remarketing Dealer on the Remarketing
Date at a redemption price equal to the greater of (i) 100% of the aggregate
principal amount of the Drs. and (ii) the Dollar Price, by giving written notice
of such redemption to the Remarketing Dealer no later than
(x) the Business Day immediately prior to the Determination Date or
(y) if fewer than three Reference Corporate Dealers submit firm,
committed bids for all outstanding Drs. to the Remarketing Dealer on the
Determination Date in accordance with Section 4 of this Security, within
thirty minutes after the deadline set by the Remarketing Dealer for
receiving such bids has passed and the Remarketing Dealer has notified the
Company of the substance of such bids.
In either such case, the Company shall pay such redemption price for the Drs. in
same-day funds by wire transfer on the Remarketing Date to an account designated
by the Remarketing Dealer.
R-4
<PAGE>
7. Certain Covenants. The Indenture restricts the Company's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Company is obliged to abide by certain covenants, including covenants limiting
the amount of liens it may incur, as well as its ability to enter into sale and
leaseback transactions, a covenant limiting the ability of its subsidiaries to
incur indebtedness, and a covenant requiring it to pay or discharge all taxes,
all as more fully described in the Indenture. All of such covenants are subject
to the covenant defeasance procedures outlined in the Indenture.
8. Effect of Event of Default. If an Event of Default shall have
occurred and be continuing under the Indenture, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
9 Tax Treatment; Agreement to Tender. The Company and the holders of
this Security (and each holder of a beneficial interest herein) by accepting
this Security, agree to treat the Drs. as fixed rate debt instruments that
mature on the Remarketing Date for United States Federal income tax purposes.
Furthermore, each holder of this Security (and each holder of a beneficial
interest herein) irrevocably agrees that this Security shall automatically be
tendered on the Remarketing Date (a) to the Remarketing Dealer if the
Remarketing Dealer elects to remarket the Securities on the terms and conditions
set forth herein or (b) to the Company if the Remarketing Dealer does not
remarket the Securities on the terms and conditions set forth herein.
10. Amendments and Waivers. Modifications and amendments of the
Indenture will be permitted to be made only with the consent of the holders of
not less than a majority in aggregate principal amount of Debt Securities issued
under the Indenture at the time outstanding of all series that are affected by
such modification or amendment (voting as a single class); provided that no such
modification or amendment may, without the consent of the holder of each such
Debt Security affected thereby, (a) extend the final maturity of the principal
of, or reduce the principal or the rate of, or extend the time of payment of
interest on, or reduce any amount payable upon redemption of, any such Debt
Security, or reduce the amount of principal of any Discount Security that would
be due and payable upon declaration of acceleration of the maturity thereof, or
the amount thereof provable in bankruptcy or impair or affect the right to
institute suit for the enforcement of any payment on or with respect to any such
Debt Security; or (b) reduce the above-stated percentage of outstanding Debt
Securities of any series necessary to modify or amend the Indenture; or (e)
modify any of the foregoing provisions or any of the provisions relating to the
waiver of certain past defaults or certain covenants, except to increase the
required percentage to effect such action or to provide that certain other
provisions may not be modified or waived without the consent of the holder of
such Debt Security.
Modifications and amendments of the Indenture will be permitted to be
made by the Company and the Trustee without the consent of any holder of Debt
Securities for any of the following purposes: (a) to convey, transfer, assign,
mortgage or pledge to the Trustee any property or assets as security for the
Debt Securities; (b) to evidence the succession of another
R-5
<PAGE>
person to the Company or the Guarantor as an obligor under the Indenture; (c) to
add to the covenants, agreements and obligations of the Company for the benefit
of the holders of all or any series of Debt Securities or to surrender any right
or power conferred upon the Company in the Indenture; (d) to cure any ambiguity,
defect or inconsistency in the Indenture; (e) to establish the form or terms of
Debt Securities of any series; (f) to add a guarantor; or (g) to provide for the
acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under the Indenture by more than one Trustee.
11. Denominations; Transfer. (a) The Securities are issuable in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof.
(b) A certificate in global form representing all or a portion of the
Securities may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such Securities or a nominee of
such successor Depositary.
12. No Liability of Certain Persons. No past, present or future
stockholder, employee, officer or director of the Company or any successor
thereof shall have any liability for any obligation, covenant or agreement of
the Company contained under this Security or the Indenture. Each holder by
accepting this Security waives and releases all such liability. This waiver and
release are part of the consideration for the issue of this Security.
13. Governing Law. The laws of the State of New York govern the
Indenture and this Security.
R-6
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto:
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF ASSIGNEE
- ----------------------------------
- ----------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP
CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security of Tyco International Group S.A. and all rights thereunder
and hereby irrevocably constitutes and appoints ______________________ attorney
to transfer said Security on the books of Tyco International Group S.A., with
full power of substitution in the premises
Dated:
--------------------------------
Signature
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN
INSTRUMENT IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER. THE SIGNATURE(S)
SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST
COMPANY, A MEMBER ORGANIZATION OF A NATIONAL STOCK
EXCHANGE OR BY SUCH OTHER ENTITY WHOSE SIGNATURE IS ON
FILE WITH AND ACCEPTABLE TO THE TRANSFER AGENT.
R-7
<PAGE>
EXHIBIT 12
TYCO INTERNATIONAL LTD.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (1)
(IN THOUSANDS)
<TABLE>
<CAPTION>
SIX FISCAL YEAR
MONTHS ENDED YEAR ENDED DECEMBER 31,
ENDED SEPT. 30, ------------------------------------------
MARCH 31, 1998 1997(5) 1996 1995 1994 1993
----------------- ----------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) before
extraordinary item and
cumulative effect of
accounting changes............................. $ 517,010 $(776,760) $(296,700) $ 267,500 $ 301,472 $ 244,294
Income Taxes..................................... 248,930 187,017 235,500 208,600 193,265 130,322
-------- ----------- --------- --------- --------- ---------
765,940 (589,743) (61,200) 476,100 494,737 374,616
-------- ----------- --------- --------- --------- ---------
Fixed Charges:
Interest expense(2).............................. 95,402 137,453 193,300 187,500 167,746 168,382
Rentals(3)....................................... 34,795 51,167 59,600 50,600 44,899 44,941
-------- ----------- --------- --------- --------- ---------
130,197 188,620 252,900 238,100 212,645 213,323
-------- ----------- --------- --------- --------- ---------
Earnings (loss) before
income taxes and fixed
charges........................................ $ 896,137 $(401,123) $ 191,700 $ 714,200 $ 707,382 $ 587,939
-------- ----------- --------- --------- --------- ---------
-------- ----------- --------- --------- --------- ---------
Ratio of earnings to fixed
charges(4)..................................... 6.88 (4) (4) 3.00 3.33 2.76
</TABLE>
- ------------------------
(1) On July 2, 1997, a wholly-owned subsidiary of ADT Limited ("ADT"; renamed
Tyco International Ltd. ("Tyco")) merged with Tyco International Ltd., a
Massachusetts corporation ("Former Tyco"). On August 27, 1997, Tyco
consummated a merger with INBRAND Corporation ("INBRAND"), and on August 29,
1997, Tyco consummated a merger with Keystone International, Inc.
("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,
except that the consolidated financial statements for periods prior to
January 1, 1997 do 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 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 results of
operations and financial position reflect the combination of ADT and
Keystone with a calendar year end and Former Tyco with a June 30 fiscal year
end.
(2) Interest expense consists of interest on indebtedness and amortization of
debt expense.
(3) One-third of net rental expense is deemed representative of the interest
factor.
(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.
(5) 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.
