EXHIBIT 4.21
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE NO. 12
Y10,000,000,000
0.57% Notes due 2000
THIS SUPPLEMENTAL INDENTURE NO. 12, dated as of August 31, 1999, 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; RULES OF CONSTRUCTION
SECTION 1.1 RELATION TO INDENTURE. This Supplemental Indenture No. 12
constitutes an integral part of the Indenture.
SECTION 1.2 DEFINITIONS. For all purposes of this Supplemental Indenture
No. 12, the following terms shall have the respective meanings set forth in this
section. In the event of a conflict with the definition of terms in the
Indenture, the definitions in this Supplemental Indenture shall control.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear or Cedel, as the case may be, that apply to such transfer
or exchange.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York, London or Tokyo are
authorized or obligated by law, executive order or governmental decree to be
closed.
"CEDEL" means Cedelbank or any successor.
"CUSTODIAN" means the Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
"DEFINITIVE NOTE" means a certificated Note in the form of Exhibit A hereto,
registered in the name of the Holder thereof and issued in accordance with
Section 2.9 hereof, except that such Note shall not bear the Global Note Legend.
"EUROCLEAR" means the Euroclear Clearance System or any successor.
"GLOBAL NOTES" means, individually and collectively, any of the Notes issued
as global notes under the Indenture.
"GLOBAL NOTE LEGEND" means the legend set forth in Section 2.9(f)(ii), which
is required to be placed on all Global Notes issued under the Indenture.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"INITIAL PURCHASER" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" has the meaning assigned to it in Section 2.1 hereof.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or Cedel, a
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and, with respect to The Depository Trust Company, shall include Euroclear and
Cedel).
"PRIVATE PLACEMENT LEGEND" means the legend set forth in
Section 2.9(f)(i) to be placed on all Notes issued under the Indenture except
where otherwise permitted by the provisions of the Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTRAR" means the registrar and transfer agent of the Company in respect
of the Notes which shall initially be by the Trustee hereunder. The Company may
appoint additional Co-Registrars or terminate the appointment of existing
Registrars at any time.
"REGULATION S" means Regulation S promulgated under the Securities Act or
any successor rule or regulation substantially to the same effect.
"REGULATION S GLOBAL NOTE" means a global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the legend in
Section 2.9(f)(iii) hereof and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the Private
Placement Legend.
"RESTRICTED PERIOD" means the period beginning on the date hereof and ending
on the date of receipt by the Trustee of an Officers' Certificate from the
Company certifying as to the end of the end of the 40-day restricted period as
defined in Regulation S and any other matters required by the Applicable
Procedures or Regulation S.
"RULE 144" means Rule 144 promulgated under the Securities Act, any
successor rule or regulation to substantially the same effect or any additional
rule or regulation under the Securities Act that permits transfers of restricted
securities without registration such that the transferee thereof holds
securities that are freely tradeable under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act or any
successor rule or regulation to substantially the same effect.
"RULE 144A GLOBAL NOTE" means a global Note in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of, and registered in the name of, the Depositary or its
nominee.
"RULE 903" means Rule 903 promulgated under the Securities Act or any
successor rule or regulation substantially to the same effect.
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"RULE 904" means Rule 904 promulgated the Securities Act or any successor
rule or regulation substantially to the same effect.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the United States Securities Act of 1933, as amended.
"UNRESTRICTED GLOBAL NOTE" means a global Note (other than a Regulation S
Global Note) in the form of Exhibit A attached hereto that bears the Global Note
Legend, and that is deposited with or on behalf of and registered in the name of
the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes that do
not bear and are not required to bear the Private Placement Legend.
"U.S. PERSON" means a U.S. Person as defined in Rule 902(o) under the
Securities Act.
SECTION 1.3 RULES OF CONSTRUCTION. For all purposes of this Supplemental
Indenture No. 12:
(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. 12; and
(c) the terms "herein", "hereof", "hereunder" and other words of similar
import refer to this Supplemental Indenture No. 12.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 TITLE OF THE SECURITIES. There shall be a series of Securities
designated as the "0.57% Notes due 2000" (the "Notes").
SECTION 2.2 FORM AND DATING.
(a) GENERAL.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each Note
shall be dated the date of its authentication. The Notes shall be in
denominations of Y100,000,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of the Indenture Supplement No. 12, and the
Company, Tyco and the Trustee, by their execution and delivery of the Indenture
Supplement No. 12, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of the Indenture Supplement No. 12, the provisions of the
Indenture Supplement No. 12 shall govern and be controlling.
The Company hereby designates The Depository Trust Company as the initial
Depositary for the Global Notes.
(b) RULE 144A GLOBAL NOTES.
Notes offered and sold to QIBs shall be issued initially in the form of the
Rule 144A Global Note, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee at its New York office, as
custodian for the Depositary, duly executed by the Company and Tyco and
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authenticated by the Trustee as hereinafter provided. Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time as conclusively reflected in the books and
records of the Trustee endorsed thereon and that the aggregate principal amount
of outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemption. Any change in
the principal amount of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee as the custodian for the Depositary, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.9 hereof.
(c) REGULATION S GLOBAL NOTES.
Notes offered and sold in reliance on Regulation S shall be issued initially
in the form of the Regulation S Global Note, which shall be deposited on behalf
of the purchasers of the Notes represented thereby with the Trustee, at its New
York office, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Cedel, duly executed by the Company and
Tyco and authenticated by the Trustee as hereinafter provided. During the
Restricted Period, interests in the Regulation S Global Note must be held
through Euroclear or Cedel, if the holders are Participants in such systems, or
indirectly through organizations that are Participants in such systems.
Following the termination of the Restricted Period, beneficial interests in
the Regulation S Global Note may be held, directly or indirectly, in the account
of any Participant of the Depositary.
(d) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel shall be applicable
to transfers of beneficial interests in the Regulation S Global Note that are
held by Participants through Euroclear or Cedel.
SECTION 2.3 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT. The aggregate
principal amount of the Notes shall not initially exceed Y10,000,000,000.
SECTION 2.4 PRINCIPAL PAYMENT DATE. Subject to the provisions of
Section 2.7 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
September 5, 2000 (the "Maturity Date").
SECTION 2.5 INTEREST AND INTEREST RATES. Interest on the Notes shall be
payable on the Maturity Date only (the "INTEREST PAYMENT DATE"); PROVIDED,
however, that if the 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 rate borne by the Notes will be 0.57% per annum, and the
interest payable on the Interest Payment Date shall be the amount of interest
accrued from August 31, 1999 to but excluding the maturity date. Interest shall
be computed on the basis of a 360-day year consisting of twelve 30-day months.
The interest payable on any Note which is punctually paid or duly provided
for on the Interest Payment Date shall be paid to the Person in whose name such
Note is registered at the close of business on the Maturity Date (the "REGULAR
RECORD DATE"). Interest payable on any Note which is not punctually paid or duly
provided for on the 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 the 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 Security
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register, such record date to be not less than five days preceding the date of
payment of such defaulted interest.
SECTION 2.6 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 or in Tokyo Japan at an office or
agency designated by the Company.
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 2.7. (a) ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS. For
purposes of the Notes, Sections 12.1 and 12.2 of the Indenture are amended in
their entirety to read as follows:
"SECTION 12.1. REDEMPTION UPON CHANGES IN WITHHOLDING TAXES. The Notes may
be redeemed, as a whole but not in part, at the election of the Company, upon
not less than 30 nor more than 60 days notice (which notice shall be
irrevocable), at a redemption price equal to 100% of the principal amount
thereof, together with accrued interest, if any, to 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 Bermuda 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 is
announced and becomes effective after the date the Notes are issued, the Company
or Tyco 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 Notes, and
such obligation cannot be avoided by the use of reasonable measures available to
the Company or Tyco, as the case may be; PROVIDED, HOWEVER, that (a) no such
notice of redemption may be given earlier than 60 days prior to the earliest
date on which the Company or Tyco, as the case may be, would be obligated to pay
such Additional Amounts, and (b) at the time such notice of redemption is given,
such obligation to pay such Additional Amounts remains in effect. Prior to the
giving of any notice of redemption described in this paragraph, the Company
shall deliver to the Trustee (i)(I) a certificate signed by two directors of the
Company stating that the obligation to pay Additional Amounts cannot be avoided
by the Company taking reasonable measures available to it or (II) a certificate
signed by two executive officers of Tyco stating that the obligation to pay
Additional Amounts cannot be avoided by Tyco taking reasonable measures
available to it, as the case may be, and (ii) a written opinion of independent
legal counsel to the Company or Tyco, as the case may be, of recognized standing
to the effect that the Company or Tyco, as the case may be, has or will become
obligated to pay Additional Amounts as a result of a change, amendment, official
interpretation or application described above and that the Company or Tyco, as
the case may be, 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
Company, Tyco and any other Guarantor under or with respect to the Notes and the
Guarantees will be made free and clear of and without withholding or deduction
for or on account of any present or future taxes, duties, levies, imposts,
assessments or governmental charges of whatever nature imposed or levied by or
on behalf of any Taxing Authority ("Taxes"), unless the Company, 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 Company,
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 Notes or
the Guarantees, as the case may be, the Company, Tyco or such Guarantor, as the
case may be, will pay such additional amounts
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("Additional Amounts") as may be necessary so that the net amount received by
each Holder of Notes (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
Notes 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 Notes or the exercise or enforcement of rights
under such Notes, the Guarantees or the Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or personal property
Tax imposed with respect to such Notes, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the
presentation of such Notes or Guarantees (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 Notes or Guarantees 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
Company, Tyco or such Guarantor shall apply this clause (d), the Company, Tyco
or such Guarantor shall have notified all Holders of Notes in writing that they
shall be required to provide such declaration or claim.
The Company, Tyco or such Guarantor, as the case may be, will also (i) make
such withholding or deduction of Taxes and (ii) remit the full amount of Taxes
so deducted or withheld to the relevant Taxing Authority in accordance with all
applicable laws. The Company, Tyco or such Guarantor, as the case may be, will
use its reasonable best efforts to obtain certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld from each Taxing
Authority imposing such Taxes. The Company, Tyco or such Guarantor, as the case
may be, will, upon request, make available to the Holders of the Notes, within
60 days after the date the payment of any Taxes so deducted or withheld is due
pursuant to applicable law, certified copies of tax receipts evidencing such
payment by the Company, Tyco or such Guarantor or if, notwithstanding the
Company's, Tyco's or such Guarantor's efforts to obtain such receipts, the same
are not obtainable, other evidence of such payments by the Company, Tyco or such
Guarantor.
At least 30 days prior to each date on which any payment under or with
respect to the Notes or Guarantees is due and payable, if the Company, Tyco or
such Guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Company, 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
Notes on the payment date.
In addition, the Company, Tyco or such Guarantor, as the case may be, 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, Bermuda 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 Notes or
the Guarantees.
The foregoing provisions shall survive any termination of the discharge of
the Indenture and shall apply mutatis mutandis to any jurisdiction in which any
successor Person to the Company, Tyco or such
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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; PROVIDED, HOWEVER, the date on which such Person becomes a successor to
the Company, Tyco or such Guarantor, as the case may be, shall be substituted
for the date on which the series of Notes was issued.
Whenever in the Indenture, the Notes or the Guarantees there is mentioned,
in any context, the payment of principal (and premium, if any), redemption
price, interest or any other amount payable under or with respect to any Notes
or Guarantees, 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."
(b) NO SINKING FUND.
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 2.8 CURRENCY AND PAYMENTS.
(a) The Company shall make shall make principal and interest payments in
respect of the Notes in Japanese Yen, subject to clause (b) of this section. All
payments in respect of the Notes represented by the Global Note will be made by
the Registrar, as paying agent for the Company, to the registered Holder of the
Global Note. Except for Euroclear or Cedel, the payment of principal, interest
and Additional Amounts, if any, to Holders of beneficial interests in Notes held
through DTC shall be made in United States dollars, unless they elect to receive
payments in Japanese Yen as provided herein.
(b) Payments of principal of and interest on the Notes held through DTC will
be converted to United States dollars in accordance with procedures established
from time to time by the Trustee and DTC and paid to Cede & Co. for payment to
owners of beneficial interests in the Global Notes. The amount payable in United
States dollars will be equal to the amount of Japanese Yen otherwise payable
exchanged into United States dollars at the (Yen)/U.S.$ rate of exchange
prevailing two business days prior to the payment date. All costs of such
conversion will be borne by those owners receiving United States dollars by
deduction from such payments. If there is no facility in place between the
Trustee and DTC for the exchange of Japanese Yen into United States dollars,
payments of the aggregate amount due to all such owners on the payment date will
be made in Japanese Yen outside of DTC, unless alternative arrangements
acceptable to both the Trustee and DTC are made by the Company.
(c) An owner of a beneficial interest in a Global Note may elect to receive
payment in respect of the principal of or interest on the Notes in Japanese Yen
by notifying the Participant through which its Global Notes are held at least
fifteen days prior to the Maturity Date of (1) such owner's election to receive
all or a portion of such payment in Japanese Yen and (2) wire transfer
instructions to a Japanese Yen account with respect to any payment to be made in
Japanese Yen. Such Participant must notify DTC of such election and wire
transfer instructions on or prior to the twelfth day prior to the Maturity Date.
DTC will notify the Trustee of such election and wire transfer instructions on
or prior to the tenth day prior to the Maturity Date. If complete instructions
are received by the Participant and forwarded by the Participant to DTC and by
DTC to the Trustee, on or prior to such dates, the owner of the beneficial
interest in the Global Note will receive payment in Japanese Yen outside of DTC;
otherwise, only United States dollar payments will be made through DTC.
(d) The Company shall have the right to require a Holder of a Note, as a
condition of payment of the principal of or interest or any Additional Amounts
on a Note, to deliver to the Trustee a certificate in such form as the Company
may from time to time prescribe in order to enable the Company to determine its
duties and liabilities with respect to (i) any taxes, assessments or
governmental charges which the Company or the Trustee may be required to deduct
or withhold from payments in respect of such debenture under any present or
future law of the government of Japan or any regulation thereunder and (ii) any
reporting
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or other requirements under such law or regulation. The Company shall be
entitled to determine its duties and liabilities with respect to such deduction,
withholding, reporting or other requirements on the basis of information
contained in such certificate or, if no certificate shall be presented, on the
basis of any presumption created by any such law or regulation and shall be
entitled to act in accordance with such determination.
SECTION 2.9 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES.
A Global Note may not be transferred as a whole except by the Depositary to
a nominee of the Depositary, by a nominee of the Depositary to the Depositary or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 90 days after the date of such
notice from the Depositary; or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Regulation S Global Note be
exchanged by the Company for Definitive Notes prior to the expiration of the
Restricted Period. Global Notes may also be, subject to compliance with the
terms of this Section 2.9, exchanged for Definitive Notes upon the request of
any holder of Notes if an Event of Default has occurred and is continuing for a
period of at least 180 days. Upon the occurrence of any of the preceding events,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.10 and 2.12 of the Indenture.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES.
The transfer and exchange of beneficial interests in the Global Notes shall
be effected through the Depositary, in accordance with the provisions of the
Indenture and the Applicable Procedures. Transfers of beneficial interests in
the Global Notes also shall require compliance with either subparagraph (i) or
(ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME TYPE OF GLOBAL NOTE.
Beneficial interests in any Rule 144A Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in a
Rule 144A Global Note in accordance with the transfer restrictions set forth
in the Private Placement Legend. Beneficial interests in any Regulation S
Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in a Regulation S Global Note; provided,
however, that prior to the expiration of the Restricted Period beneficial
interests in the Regulation S Global Note may only be transferred in
accordance with the Applicable Procedures of Euroclear and Cedel. Beneficial
interests in any Unrestricted Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described
in this Section 2.9(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN GLOBAL
NOTES. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.9(b)(i) above, and, subject to
any other requirement in this Section 2.9, the transferor of such beneficial
interest must deliver to the Registrar (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to credit or cause
to be credited a beneficial interest in a Global Note of another type in an
amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
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such increase or (B), subject to Section 2.9(a), (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial interest to be
exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive
Note shall be registered to effect the exchange; provided that in no event
shall Definitive Notes be issued upon the exchange of beneficial interests
in the Regulation S Global Note prior to the expiration of the Restricted
Period. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained herein and in the
Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.9(g) hereof.
(iii) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RULE 144A
GLOBAL NOTE FOR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE. A
beneficial interest in Rule 144A Global Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if (x) the exchange or
transfer complies with the requirements of Section 2.9(b)(ii) above and
(y) such transfer is effected pursuant to Rule 144 of the Securities Act, a
letter in the form of Exhibit B with the certification set forth in
paragraph 4(a) completed, and, if the Trustee and the Registrar so request
or the Applicable Procedures so require, an Opinion of Counsel to the effect
that the transfer is permitted, and that upon transfer the Notes will not be
restricted, under the Securities Act, is furnished to the Trustee and
Registrar.
If any such transfer is effected at a time when an Unrestricted Global Note
has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.5 of the Indenture, the
Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial interests
so transferred.
(iv) Transfer and Exchange of Beneficial Interests to and From
Regulation S Global Notes.
(A) Transfer and Exchange of Beneficial Interests in a Regulation S
Global Note Prior to the Termination of the Restricted Period for
Beneficial Interests in a Rule 144A Global Note. A beneficial interest in
any Regulation S Global Note may be exchanged by any holder thereof for a
beneficial interest in a Rule 144A Global Note or transferred to a Person
who takes delivery thereof in the form of a beneficial interest in a
Rule 144A Global Note, if (x) the exchange or transfer complies with the
requirements of Section 2.9(b)(ii) above, and (y) the holder of the
beneficial interest in the Regulation S Global Note delivers to the
Trustee and the Registrar a letter in the form of Exhibit B with the
certification set forth in paragraph 1 or Exhibit C with the
certification set forth in paragraph 2(b), as applicable, completed.
(B) Transfer and Exchange of Beneficial Interests in a Regulation S
Global Note Following the Termination of the Restricted Period for
Beneficial Interests in an Unrestricted Global Note. A beneficial
interest in any Regulation S Global Note following the termination of the
Restricted Period may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Note or transferred to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, if (x) the exchange or transfer complies with
the requirements of Section 2.9(b)(ii) above and (y) the holder of the
Regulation S Global Note delivers to the Trustee and the Registrar a
letter in the form of Exhibit B with the certification set forth in
paragraph 4(b) or Exhibit C with the certification set forth in
paragraph 1, as applicable, completed.
(C) Transfer and Exchange of Beneficial Interests in a Rule 144A
Global Note for Beneficial Interests in a Regulation S Global Note. A
beneficial interest in any Rule 144A Global Note may be exchanged by any
holder thereof for a beneficial interest in a Regulation S Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in a
9
Regulation S Global Note, if (x) the exchange or transfer complies with
the requirements of Section 2.9(b)(ii) above and (y) the holder of the
beneficial interest in the Rule 144A Global Note delivers to the Trustee
and the Registrar a letter in the form of Exhibit B with the
certification set forth in paragraph 2 or Exhibit C with the
certification set forth in paragraph 2(b), as applicable, completed.
(c) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL NOTES FOR
DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RULE 144A GLOBAL NOTES TO RESTRICTED
DEFINITIVE NOTES. If any holder of a beneficial interest in a Rule 144A
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note in the circumstances set forth in Section 2.9(a) hereof,
such Definitive Note shall be subject to all restrictions on transfer
contained therein and shall be issued, upon receipt by each of the Trustee
and the Registrar of Exhibit C with the certification set forth in
paragraph 2`(a) completed;
(ii) intentionally omitted.
(iii) BENEFICIAL INTERESTS IN RULE 144A GLOBAL NOTES OR REGULATION S
GLOBAL NOTES TO UNRESTRICTED DEFINITIVE NOTES. Subject to Section 2.9(a), a
holder of a beneficial interest in a Rule 144A Global Note or Regulation S
Global Note may exchange such beneficial interest for an Unrestricted
Definitive Note only if such exchange is in accordance with the Applicable
Procedures, a letter in the form of Exhibit B with the certification set
forth in paragraph 4(a)(ii) is completed, and, if the Trustee and the
Registrar so request or the Applicable Procedures so require, an Opinion of
Counsel to the effect that the exchange is permitted, and that upon transfer
the Notes will not be restricted, under the Securities Act, is furnished to
the Trustee and Registrar.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO UNRESTRICTED
DEFINITIVE NOTES. A holder of a beneficial interest in an Unrestricted
Global Note may, in the circumstances described in Section 2.9(a), exchange
such beneficial interest for an Unrestricted Definitive Note.
Any transfer pursuant to this Section 2.9(c) shall satisfy the requirements
of Section 2.9(b)(ii). In any such case, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.9(h) hereof, and the Company shall execute and the
Trustee, upon receipt of an Authentication Order in accordance with Section 2.5
of the Indenture, shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Restricted Definitive Note issued in exchange for a beneficial interest in a
Global Note pursuant to this Section 2.9(c) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS IN
GLOBAL NOTES.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN RULE 144A
GLOBAL NOTES. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Rule 144A Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Rule 144A Global Note,
then, upon receipt by each of the Trustee and the Registrar of a letter in
the form of Exhibit B with the certification set forth in paragraph 1 or
Exhibit C with the certification set forth in paragraph 2(b), as applicable,
completed, the Trustee shall cancel the Restricted Definitive Note and
increase or cause to be increased the aggregate principal amount of the
appropriate Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN UNRESTRICTED
GLOBAL NOTES. A Holder of a Restricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery thereof in
the form of
10
a beneficial interest in an Unrestricted Global Note only if such transfer
is effected pursuant to Rule 144 of the Securities Act, a letter in the form
of Exhibit B with the certification set forth in paragraph 4(a) completed,
and, if the Trustee and the Registrar so request or the Applicable
Procedures so require, an Opinion of Counsel to the effect that the transfer
is permitted, and that upon transfer the Notes will not be restricted, under
the Securities Act, is furnished to the Trustee and Registrar.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note at any time
if permitted by the Applicable Procedures and applicable law. Upon receipt
of a request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Notes.
(iv) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
REGULATION S GLOBAL NOTES. A beneficial interest in any Restricted
Definitive Note may be exchanged by any holder thereof who is a non-U.S.
Person for a beneficial interest in a Regulation S Global Note or
transferred to a Non U.S. Person who takes delivery thereof in the form of a
beneficial interest in a Regulation S Global Note, if (x) the holder of the
Restricted Definitive Note delivers to the Trustee and the Registrar a
letter in the form of Exhibit B with the certification set forth in
paragraph 2 or Exhibit C with the certification set forth in
paragraph 2(b), as applicable, completed and (y) if the Trustee and the
Registrar so request or if the Applicable Procedures so require, an Opinion
of Counsel in form reasonably acceptable to the Trustee and the Registrar is
furnished to the Trustee and the Registrar to the effect that such exchange
or transfer is in compliance with the Securities Act.
If any such exchange or transfer from a Definitive Note to a beneficial
interest in a Global Note is effected at a time when a Global Note of the
appropriate type has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 5 of the Indenture
the Trustee shall authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.9(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this
Section 2.9(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then the
transferor must deliver a letter in the form of Exhibit B with
certification set forth in paragraph 1 completed,
(B) if the transfer will be made to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or 904 under the Securities, then
the transferor must deliver a letter in the form of Exhibit B with the
certification set forth in paragraph 2 completed; and
(C) if the transfer will be made pursuant to any other exemption from
the registration requirements of the Securities Act, then the transferor
must deliver a letter in the form of
11
Exhibit B with the certification set forth in paragraph 3 completed, as
well as an Opinion of Counsel in form and substance acceptable to the
Trustee.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such transfer is effected pursuant to Rule 144 of the Securities
Act, a letter in the form of Exhibit B with the certification set forth
in paragraph 4(a) completed, and, if the Trustee and the Registrar so
request or the Applicable Procedures so require, an Opinion of Counsel to
the effect that the transfer is permitted, and that upon transfer the
Notes will not be restricted, under the Securities Act, is furnished to
the Trustee and Registrar.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note.
Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from
the Holder thereof.
(f) LEGENDS.
The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under the Indenture unless specifically stated otherwise
in the applicable provisions of the Indenture.
(i) PRIVATE PLACEMENT LEGEND. (A) Except as permitted by subparagraph
(B) below, each Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following
form:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) NOT A U.S. PERSON AND IS ACQUIRING
THE NOTE EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL
NOT RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY EXCEPT TO (A) THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OR ANY OTHER APPLICABLE JURISDICTION;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED
HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF
THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C) OR (D) ABOVE, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED
12
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Note which is (i) a
Regulation S Global Note (and any Note issued in exchange therefor or
substitution thereof after the Restricted Period), or (ii) a Note which
has been transferred in accordance with Rule 144, provided that in such
case an Opinion of Counsel is delivered which states that the Note does
not have to bear the Private Placement Legend in the cases where such
opinion is required under this Indenture, shall not bear the Private
Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN CERTAIN CIRCUMSTANCES IN THE SUPPLEMENTAL INDENTURE NO. 12, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) REGULATION S GLOBAL NOTE LEGEND. The Regulation S Global Note
shall bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN
THE INDENTURE (AS DEFINED HEREIN). DURING THE RESTRICTED PERIOD, INTERESTS IN
THIS NOTE MAY ONLY BE HELD THROUGH EUROCLEAR AND CEDEL."
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES.
At such time as all beneficial interests in a particular Global Note have
been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 of the Indenture. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary to reflect
such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary to reflect such increase.
SECTION 2.10 DEFEASANCE AND COVENANT DEFEASANCE. The provisions of Article
Nine of the Indenture shall apply to the Notes.
SECTION 2.11 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITY HOLDERS. In
addition to provisions specified in Section 7.2 of the Indenture, Section 7.2 is
supplemented to include the following as clause (c) at the end of the first
paragraph thereof and deleting the ", or" immediately prior to clause (b):
"or (c) change the currency denomination of Securities of any series,
including the currency denomination of any interest or other payments thereon,
without the consent of the Holders of each Security so affected."
13
SECTION 2.12 DEFINITION OF PERMITTED SUBSIDIARY INDEBTEDNESS. Clause (vi)
of the definition of "Permitted Subsidiary Indebtedness" in Section 1.1 of the
Indenture is amended by inserting after the phrase "Acquired Indebtedness that
by its terms is not" the following phrase:
", at the time it becomes Acquired Indebtedness or within 180 days
thereafter,"
SECTION 2.13 IN ADDITION TO PROVISIONS SPECIFIED IN SECTION 10.10 OF THE
INDENTURE, SECTION 10.13 IS HEREBY ADDED TO THE INDENTURE AS FOLLOWS:
Section 10.13 JUDGMENT CURRENCY NOT IN JAPANESE YEN. If pursuant to a
judgment or order being made or registered against the Company or Tyco, any
payment under or in connection with any Notes or any Guarantees thereof to a
Holder is made or satisfied in a currency (the "Judgment Currency") other than
in Japanese Yen then, to the extent that the payment (when converted into
Japanese Yen at the rate of exchange on the date of payment or, if it is not
practicable for such Holder to purchase Japanese Yen 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 the Notes, each of the Company 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 10.13, "rate of
exchange" means the rate at which the Holder is able on the relevant date to
purchase Japanese Yen with the Judgment Currency and shall take into account any
premium and other costs of exchange. Notwithstanding anything in this
Section 10.13 to the contrary, a Holder (a) may only make a claim pursuant to
this Section 10.13 if such Holder had properly elected to receive the payment of
principal in Japanese Yen at maturity pursuant to Section 2.8(c) and (b) may not
make any claim for payments under this Section 10.13 if the Holder has sought
any payments under Section 10.10 of the Indenture.
SECTION 2.14 DEFINITION OF RESTRICTED SUBSIDIARY. The definition of
"Restricted Subsidiary" in Section 1.1 of the Indenture is amended in its
entirety to read as follows:
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company which owns or
leases a Principal Property.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 RATIFICATION. The Indenture, as supplemented and amended by
this Supplemental Indenture No. 12, is in all respects hereby adopted, ratified
and confirmed.
SECTION 3.2 COUNTERPARTS. This Supplemental Indenture No. 12 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 AMENDMENTS. This Supplemental Indenture No. 12 may be amended
by the Company and Tyco without the consent of any holder of the Notes in order
for the restrictions on transfer contained herein to be in compliance with
applicable law or the Applicable Procedures.
SECTION 3.4 APPLICABLE PROCEDURES. Notwithstanding anything else herein,
the Company shall not be required to permit a transfer to a global note that is
not permitted by the Applicable Procedures.
SECTION 3.5 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE NO. 12 AND EACH
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
14
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 12 to be duly executed as of the day and year first written above.
TYCO INTERNATIONAL GROUP S.A.
By: ----------------------------------------
Name:
Title:
TYCO INTERNATIONAL LTD.
By: ----------------------------------------
Name:
Title:
THE BANK OF NEW YORK, Trustee
By: ----------------------------------------
Name:
Title:
15
