Exhibits 4.2
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE N0. 13
Euro 600,000,000
6-1/8% Notes due 2007
THIS SUPPLEMENTAL INDENTURE NO. 13, dated as of April 4, 2000, 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 1
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.01. Relation to Indenture. This Supplemental Indenture No. 13
constitutes an integral part of the Indenture.
SECTION 1.02. Definitions. For all purposes of this Supplemental Indenture
No. 13, 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.
"Agent" means any Registrar, Paying Agent or co-registrar.
"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 Clearstream, Luxembourg, 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 commercial banks and foreign exchange markets in the place of
presentation are closed and on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System is open.
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme,
Luxembourg or any successor.
"Common Depositary" has the meaning assigned to it in Section 2.2(a)
hereof.
"Custodian" means the Trustee, as custodian with respect to the Rule 144A
Global 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.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant to
Section 2.9(f) hereof; following the exchange of interests in the Rule 144A
Global Notes, the Regulation S Global Notes and any Restricted Definitive Note
for Exchange Notes pursuant to an effective registration statement, the defined
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term "Exchange Notes" and "Notes" shall have the same meaning and be entitled
to the same rights under the Indenture.
"Exchange Offer" means the exchange offer by the Company of the Exchange
Notes for the Notes issued in reliance upon an exemption from registration
under the Securities Act on the date hereof in accordance with the provisions
of the Registration Rights Agreement.
"Exchange Offer Registration Statement" means an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement,
including the prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein filed by the Company and Tyco in
accordance with the Registration Rights Agreement in connection with the
Exchange Offer.
"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(g)(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.
"Letter of Transmittal" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Manager" means each of Xxxxxxx Xxxxx International, X.X. Xxxxxx
Securities Ltd., ABN AMRO Bank N.V., Banca d'Intermediazione Mobiliare IMI Spa,
Banque Nationale de Paris, Barclays Bank PLC, Bayerische Hypo- and Vereinsbank
AG, Commerzbank Aktiengesellschaft, Credit Lyonnais, Credit Suisse First Boston
(Europe) Limited, Deutsche Bank Aktiengesellschaft, Dresdner Bank AG London
Branch, HSBC Bank plc and Westdeutsche Landesbank Girozentrale.
"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 Euroclear or Clearstream, Luxembourg
or the U.S. Depositary, a Person who has an account with Euroclear or
Clearstream, Luxembourg or the U.S. Depositary, respectively, as the case may
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be (and, with respect to The Depository Trust Company, shall include Euroclear
and Clearstream, Luxembourg).
"Participating Broker Dealer" means the Managers and any other
broker-dealer which makes a market in the Notes and exchanges Notes in the
Exchange Offer for Exchange Notes.
"Private Placement Legend" means the legend set forth in Section 2.9(g)(i)
to be placed on all Notes issued under the Indenture except where otherwise
permitted by the provisions of the Indenture.
"IB" means a "qualified institutional buyer" as defined in Rule 144A.
"Reference Dealer" means either of Xxxxxxx Xxxxx International or X.X.
Xxxxxx Securities Ltd. or their respective successors as selected by the
Company in any particular case.
"Reference Dealer Rate" means with respect to the Reference Dealer and any
redemption date, the midmarket annual yield to maturity, as determined by the
Reference Dealer, of the German Government Bund 6.00% due January 2007 or, if
that security is no longer outstanding, a similar security in the reasonable
judgment of the Reference Dealer, at 11:00 a.m. (London time) on the fifth
business day in London preceding such redemption date quoted in writing to the
trustee by such Reference Dealer.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of April 4, 2000, by and among the Company, Tyco and the Managers, as
such agreement may be amended, modified or supplemented from time to time.
"Registrar" means the registrar and transfer agent of the Company in
respect of the Notes which shall initially be 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(g)(iii)
hereof and deposited with or on behalf of the Common Depositary and registered
in the name of the Common Depositary or its nominee.
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"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 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.
"Rule 904" means Rule 904 promulgated under 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.
"Shelf Registration Statement" means a "shelf" registration statement of
the Company and Tyco filed pursuant to the provisions of the Registration
Rights Agreement on an appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
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"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. Depositary" has the meaning assigned to it in Section 2.2(a) hereof.
"U.S. Person" means a U.S. Person as defined in Rule 902(o) under the
Securities Act.
SECTION 1.03. Rules of Construction. For all purposes of this Supplemental
Indenture No. 13:
(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. 13; and
(c) the terms "herein", "hereof', "hereunder" and other words of similar
import refer to this Supplemental Indenture No. 13.
ARTICLE 2
THE SERIES OF NOTES
SECTION 2.01. Title of the Securities. There shall be a series of
Securities designated as the "6-1/8% Notes due 2007" (the "Notes").
SECTION 2.02. 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
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Note shall be dated the date of its authentication. The Notes shall be in
denominations of Euro 1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Supplemental Indenture No. 13, and the
Company, Tyco and the Trustee, by their execution and delivery of this
Supplemental Indenture No. 13, 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 this Supplemental Indenture No. 13, the
provisions of this Supplemental Indenture No. 13 shall govern and be
controlling.
The Company hereby designates (i) the common depositary for Euroclear and
Clearstream, Luxembourg, as the initial Depositary for the Regulation S Global
Notes (the "Common Depositary") and (ii) The Depository Trust Company as the
initial Depositary for the Rule 144A Global Notes (the "U.S. Depositary").
References to the "Depositary" herein shall refer to the Depositary designated
in each of clause (i) and clause (ii) of the foregoing sentence.
The Company hereby designates Credit Agricole Indosuez Luxembourg S.A. as
paying agent in Luxembourg and The Bank of New York, acting through its London
branch, as paying agent in London, in respect of the Regulation S 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 U.S. Depositary, duly executed by the Company and Tyco and
authenticated by the Trustee as hereinafter provided. Each Rule 144A 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 Rule 144A 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 U.S. 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.
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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 Common
Depositary, and registered in the name of the Common Depositary or the nominee
of the Common Depositary for the accounts of Euroclear or Clearstream,
Luxembourg, 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 Clearstream,
Luxembourg, 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 U.S. Depositary, Euroclear or Clearstream.
(d) Euroclear and Clearstream, Luxembourg 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 Clearstream, Luxembourg Bank" and "Customer Handbook" of
Clearstrearn, Luxembourg shall be applicable to transfers of beneficial
interests in the Regulation S Global Note that are held by Participants through
Euroclear or Clearstream, Luxembourg.
SECTION 2.03. Limitation on Aggregate Principal Amount. The aggregate
principal amount of the Notes shall not initially exceed Euro 600,000,000.
SECTION 2.04. 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 April 4, 2007.
SECTION 2.05. Interest and Interest Dates. Interest on the Notes shall be
payable annually on April 4 of each year beginning on April 4, 2001 (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 rate borne by the
Notes will be 6-1/8% per annum until the Notes are paid in full subject,
however, to the following provisions. In the event that (i) the Exchange Offer
Registration Statement is not filed with the SEC on or prior to the 150th
calendar day following the original issue of the Notes, (ii) the Exchange Offer
Registration
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Statement has not been declared effective by the SEC on or prior to the 180th
calendar day following the original issue of the Notes or (iii) the Exchange
Offer is not consummated or a Shelf Registration Statement is not declared
effective, in either case, on or prior to the 210th calendar day following the
original issue of the Notes (each such event in clauses (i) through (iii)
above, a "Registration Default"), the interest rate borne by the Notes shall be
increased by an amount ("Additional Interest") equal to an additional one
quarter of one percent (0.25%) per annum upon the occurrence of each
Registration Default, which rate will increase by an additional one quarter of
one percent (0.25%) per annum each 90-day period that such Additional Interest
continues to accrue under any such circumstance, provided that the maximum
aggregate increase in the interest rate will in no event exceed one half of one
percent (0.5%) per annum; provided, however, that no Additional Interest shall
be payable if the Exchange Offer Registration Statement is not filed or
declared effective or the Exchange Offer is not consummated as set forth above
because of any changes in law, SEC rules or regulations or applicable
interpretations thereof by the staff of the SEC (it being understood that in
any such circumstance the Company shall be required to file a Shelf
Registration Statement and Additional Interest shall be payable if such Shelf
Registration Statement is not declared effective as provided in clause (iii)
above); and provided further that Additional Interest shall only be payable in
the case a Shelf Registration Statement is not declared effective as aforesaid
with respect to notes that have the right to be included, and whose inclusion
has been requested, in the Shelf Registration Statement. Following the cure of
all Registration Defaults applicable to the respective Notes, the accrual of
Additional Interest will cease and the interest rate will revert to 6-1/8% per
annum.
If a Shelf Registration Statement is declared effective but shall
thereafter become unusable by the Holder of Notes for any reason (whether or
not the Company had the right to prevent the Holders from distributing Notes
during any period pursuant to the Registration Rights Agreement) and the
aggregate number of days in any consecutive twelve-month period for which the
Shelf Registration Statement shall not be usable exceeds 30 days, the interest
rate borne by the Notes included in such Shelf Registration Statement will be
increased by an amount ("Additional Interest") equal to one quarter of one
percent (0.25%) per annum for the first 90-day period (or portion thereof)
beginning on the 31st such date that such Shelf Registration Statement ceases
to be usable, which rate shall be increased by an additional one quarter of one
percent (0.25%) per annum at the beginning of each subsequent 90-day period,
provided that the maximum aggregate increase in the interest rate will in no
event exceed one-half of one percent (0.5%) per annum. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by
the Notes included therein will be reduced to the original interest rate if the
Company is otherwise in compliance with the Registration Rights Agreement with
respect to such Notes at that time.
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Additional Interest in accordance with this paragraph shall be computed based
upon the actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is unusable. For all purposes of this Supplemental
Indenture No. 13, the term interest shall include "Additional Amounts" and
"Additional Interest".
The interest payable on each Interest Payment Date shall be the amount of
interest accrued from April 4, 2000 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. To
the extent interest is required to be calculated for a period of less than one
year, it will be calculated on the basis of the actual number of days elapsed
divided by the actual number of days in the period from and including the
immediately preceding Interest Payment Date to but excluding the next Interest
Payment Date.
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 March 20 (whether or not a
Business Day) 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 Security
register, such record date to be not less than five days preceding the date of
payment of such defaulted interest.
The Company and Tyco shall notify the Trustee within five Business Days
after each and every date (an "Event Date") on which an event occurs in respect
of which Additional Interest is required to be paid. The obligation to pay
Additional Interest shall be deemed to accrue from and including the day
following the applicable Event Date. Additional Interest shall be paid by
depositing with the Trustee for the benefit of the Holders of the Notes
entitled to receive such Additional Interest, on or before the applicable
Interest Payment Date, immediately available funds in sums sufficient to pay
the Additional Interest then due. Additional Interest shall be payable to the
Person otherwise entitled to be paid the interest payable on the Notes on such
Interest Payment Date.
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SECTION 2.06. 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 (i) in the Borough of Manhattan, The City of New York, and
the office or agency maintained by the Company for such purpose at such
location shall initially be the Corporate Trust Office of the Trustee, (ii) in
Luxembourg, and the office or agency maintained by the Company for such purpose
at such location shall initially be the office of Credit Agricole Indosuez
Luxembourg S.A. and (iii) in London, and the office or agency maintained by the
Company for such purpose at such location shall initially be the office of the
Trustee, acting through its London branch.
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 2.07. Redemption. (a) The Notes may be redeemed, in whole but not
in part, at the option of the Company, at any time upon not less than 30 nor
more than 60 days' notice (which notice shall be irrevocable) at a redemption
price equal to the greater of (i) 100% of the principal amount of such Notes or
(ii) as determined by the Reference Dealer, (A) 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 redemption date on an annual basis (based on the
actual number of days elapsed divided by 365 (or, if any of those days elapsed
fall in a leap year, the sum of (x) the number of those days falling in a leap
year divided by 366 and (y) the number of those days falling in a non-leap year
divided by 365)) at the Reference Dealer Rate, plus 10 basis points, plus (B)
in each case, accrued interest thereon to the date of redemption.
(b) 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 option 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
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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
("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
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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 Taxes 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
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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 muratis mutandis to any jurisdiction in which any
successor Person to the Company, 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; 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."
(c) 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 2.08. Currency. Principal and interest on the Notes shall be
payable in Euro.
14
Payments of principal and interest or any other amounts payable hereunder
to holders of Rule 144A Global Notes through the U.S. Depositary will be paid
in U.S. dollars converted from Euro by the Trustee unless the holder elects to
receive payments in Euro as described below. Prior to 10:00 a.m., London time,
two Business Days prior to the date of any payment of principal, interest or
any other amount payable hereunder to holders of Rule 144A Global Notes, the
Company shall deposit with the Trustee or Paying Agent, the amount of Euro to
be converted into U.S. dollars.
Payments of principal and interest on Rule 144A Global Notes held through
the U.S. Depositary will be converted to U.S. dollars in accordance with the
procedures established from time to time by the Trustee and the U.S. Depositary
and paid to the nominee of the U.S. Depositary for payment to owners of
beneficial interests in the Rule 144A Global Notes. All costs of such
conversion will be borne by those owners receiving U.S. dollars by deduction
from those payments. If the Trustee is not able to exchange Euro into U.S.
dollars, payments of the aggregate amount due to all such owners on the payment
date will be made in Euro outside of the U.S. An owner of a beneficial interest
in a Rule 144A Global Note may elect to receive payment in respect of the
principal of or interest on the Notes in Euro by notifying the Participant
through which its Rule 144A Global Note is held at least 15 days prior to the
payment date of (1) such owner's election to receive all or a portion of such
payment in Euro and (2) wire transfer instructions to an account denominated in
Euro with respect to any payment to be made in Euro. Such Participant must
notify the U.S. Depositary of such election and wire transfer instructions on
or prior to the twelfth day prior to the payment date. If complete instructions
are received by the Participant and forwarded by the Participant to the U.S.
Depositary and by the U.S. Depositary to the Trustee, on or prior to such
dates, the owner of the beneficial interest in the Rule 144A Global Note will
receive payment in Euro outside of the U.S. Depositary; otherwise, only U.S.
dollar payments will be made through the U.S. Depositary.
SECTION 2.09. 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 U.S.
Depositary or Euroclear and Clearstream, Luxembourg that it is or they are
unwilling or unable to continue to
15
act as clearing agencies for the Notes or are no longer clearing agencies
registered under the Exchange Act or other applicable law and, in either case,
a successor Depositary is not appointed by the Company within 90 days after the
date of such notice; 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, subject to compliance with the terms of this Section 2.9, be
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 U.S. Depositary or Euroclear or
Clearstream, Luxembourg 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 U.S. Depositary or Euroclear or Clearstream,
Luxembourg, 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 Clearstream, Luxembourg.
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
16
interests that are not subject to Section 2.9(bXi) 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 U.S.
Depositary, Euroclear or Clearstream, Luxembourg 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 such increase or (B), subject to Section 2.9(a), (1)
a written order from a Participant or an Indirect Participant given to
the U.S. Depositary, Euroclear or Clearstream, Luxembourg in
accordance with the Applicable Procedures directing the U.S.
Depositary, Euroclear or Clearstream, Luxembourg 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 U.S. Depositary, Euroclear
or Clearstream, Luxembourg 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(h)
hereof.
(iii) Transfer and Exchange of Beneficial Interests in a Rule 144A
Global Note or a Regulation S 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):
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee,
in the case of a transfer, certifies in the applicable Letter
of Transmittal or via the Depositary's book-entry system that
it is not (1) a broker- dealer, (2) a Person participating in
the distribution of the
17
Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company, and such Letter of
Transmittal or book- entry system certification shall satisfy
the requirements of Section 2.9(ii);
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(D) 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) thereof
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
18
certification set forth in paragraph 1 thereof or Exhibit C
with the certification set forth in paragraph 2(b) thereof,
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) thereof or Exhibit C with the certification
set forth in paragraph 1 thereof, 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 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 thereof or Exhibit C with the certification set
forth in paragraph 2(b) thereof, 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
19
and the Registrar of Exhibit C with the certification set forth in
paragraph 2(a) thereof 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) thereof 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
20
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 thereof or Exhibit C with the certification
set forth in paragraph 2(b) thereof, 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 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) thereof 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 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 thereof or Exhibit C with the
certification set forth in paragraph 2(b) thereof, as applicable,
completed and (y) if the Trustee and the Registrar so
21
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.
Any transfer or exchange made pursuant to this Section 2.9(d) shall be
made in accordance with the Applicable Procedures.
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 thereof
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 Act, then the transferor must deliver a
letter in the form of Exhibit B with the certification set
forth in paragraph 2 thereof completed; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act,
22
then the transferor must deliver a letter in the form of
Exhibit B with the certification set forth in paragraph 3
thereof 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 exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal, that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) any such transfer is effected by a Participating
Broker Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) 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) thereof
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) Exchange Offer; Shelf Registration Statement
23
(i) Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.5 of
the Indenture, the Trustee shall authenticate (x) one or more
Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of the beneficial interests in the Rule 144A
Global Notes and Regulation S Global Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that (A)
they are not broker- dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the
Exchange Offer and (y) Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate
principal amount of the applicable Rule 144A Global Notes and/or
Regulation S Global Notes to be reduced accordingly, and the Company
shall execute and the Trustee shall, upon receipt of an Authentication
Order in accordance with Section 2.5 of the Indenture, authenticate
and deliver to the Persons designated by the Holders of the Restricted
Definitive Notes so accepted Unrestricted Definitive Notes in the
appropriate principal amount.
(ii) Following the effectiveness of a Shelf Registration Statement the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.5 of the Indenture the Trustee shall
authenticate from time to time (x) one or more Unrestricted Global
Notes, or, if there shall be at the time one or more Unrestricted
Global Notes outstanding and such increase can be effected in
accordance with Applicable Procedures, the Trustee shall increase or
cause to be increased the aggregate principal amount thereof, in each
case in an aggregate principal amount equal to the principal amount of
the beneficial interests in the Global Notes sold by Persons that
certify as to the consummation of such sale under the Shelf
Registration Statement in a manner acceptable to the Trustee and the
Company and (y) Unrestricted Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted
Definitive Notes sold by Persons that certify as to the consummation
of such sale under the Shelf Registration Statement in a manner
acceptable to the Trustee and the Company. Concurrently with the
issuance of such Unrestricted Global Notes, the Trustee shall cause
the aggregate principal amount of the applicable Rule 144A Global
Notes and/or the Regulation S Global Notes to be reduced accordingly,
and the Company shall execute and the Trustee shall, upon receipt of
an Authentication Order in accordance with Section
24
2.5 of the Indenture, authenticate and deliver to the Persons
designated by the Holders of Restricted Definitive Notes so sold
Unrestricted Definitive Notes in the appropriate principal amount.
(g) 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 GUARANTOR, 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
25
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 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), (ii) a Note which has been exchanged or transferred
pursuant to the Exchange Offer Registration Statement or the
Shelf Registration Statement, or (iii) 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. 13, (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."
26
(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 CLEARSTREAM, LUXEMBOURG."
(h) 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.
The Trustee and the Registrar shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer or
exchange imposed under the Indenture, this Supplemental Indenture or under
applicable law with respect to any transfer or exchange of any interest in any
Note (including any transfers between or among Participants, Indirect
Participants or beneficial owners of interests in any Global Note) other than
to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by, the
terms of the Indenture or this Supplemental Indenture, and to examine the same
to determine substantial compliance as to form with the express requirements
hereof.
SECTION 2.10. Supplemental Indentures with Consent of Security Holders. In
addition to provisions specified in Section 7.2 of the Indenture, Section 7.2
is
27
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."
SECTION 2.11. 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 2.12. 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 3
MISCELLANEOUS PROVISIONS
SECTION 3.01. Ratification. The Indenture, as supplemented and amended by
this Supplemental Indenture No. 13, is in all respects hereby adopted, ratified
and confirmed.
SECTION 3.02. Counterparts. This Supplemental Indenture No. 13 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. Amendments. This Supplemental Indenture No. 13 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.
28
SECTION 3.04. 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 3.05. Governing Law. THIS SUPPLEMENTAL INDENTURE NO. 13 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.
29
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 13 to be duly executed as of the day and year first written
above.
TYCO INTERNATIONAL GROUP S. A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxx
--------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
Chief Financial Officer
THE BANK OF NEW YORK, Trustee
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Assistant Treasurer
30
EXHIBIT A - Rule 144A Global Note
TYCO INTERNATIONAL GROUP S.A.
6-1/8% Note due 2007
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 DESCRIBED IN THE SUPPLEMENTAL INDENTURE
NO. 13, (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.
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:
REPRESENTS THAT (1) 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
GUARANTOR, 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
31
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 STATES" AND "U.S. PERSON"HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
32
EXHIBIT A - Rule 144A Global Note
TYCO INTERNATIONAL GROUP S.A.
6-1/8% Note due 2007
No. _______ CUSIP: 902118 AS7
Common Code: 10982804
Euro ___________ ISIN: US902118AS79
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), for
value received, hereby promises to pay to CEDE & CO. or registered assigns, the
principal sum of ______________ Euro on April 4, 2007, at the office or agency
of the Issuer in the Borough of Manhattan, The City of New York, in London or
in Luxembourg, in euro, and to pay interest thereon annually on April 4 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 April
4, 2001, 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 April 4, 2000 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. To the extent interest is required to be calculated
for a period of less than one year, it will be calculated on the basis of the
actual number of days elapsed divided by the actual number of days in the
period from and including the immediately preceding Interest Payment Date to
but excluding the next Interest Payment Date.
For purposes of this Note, "Business Day" means any day other than a
Saturday, a Sunday or a day on which commercial banks and foreign exchange
markets in the place of presentation are closed and on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
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 registered at the close of business on the March 20
(whether or not a Business Day) immediately preceding such Interest Payment
Date (each, a "Regular Record'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
33
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.
All references in the Notes (and related Guarantees) to interest shall
include any Additional Interest or Additional Amounts.
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.
34
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this
instrument to be signed by its duly authorized Managing Directors.
Dated: April 4, 2000
TYCO INTERNATIONAL GROUP S. A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
35
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
36
GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Note the
payment of principal of, and interest on, the Note 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. All references in this Guarantee
to interest shall include any Additional Amounts or Additional Interest.
Dated: Xxxxx 0, 0000
XXXX INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxx
--------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
Chief Financial Officer
37
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
6-1/8% Notes due 2007
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 2007 of the Issuer, initially limited in aggregate principal
amount to Euro 600,000,000, 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. 13, dated as of April 4, 2000 (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 provided in
the Indenture.
(c) All capitalized terms used in this Note (or the related
Guarantee) 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, Tyco 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 provided in the Indenture, 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
38
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
Holder of each Security so affected, (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 or (iii) 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.
(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 hereof, 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 but not in part, at the
option of the Issuer, at any time upon not less than 30 nor more than 60 days'
notice (which notice shall be irrevocable) at a redemption price equal to the
greater of (i) 100% of the principal amount of this Note or (ii) as determined
by the Reference Dealer, (A) 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 redemption date on an annual basis (based on the actual number of days
elapsed
39
divided by 365 (or, if any of those days elapsed fall in a leap year, the sum
of (x) the number of those days falling in a leap year divided by 366 and (y)
the number of those days falling in a non-leap year divided by 365)) at the
Reference Dealer Rate, plus 10 basis points, plus (B) in each case, accrued
interest thereon to the date of redemption. This Note is also subject to
redemption upon certain events of taxation to the extent provided in Article
Twelve of the Indenture.
"Reference Dealer" means either of Xxxxxxx Xxxxx International or X.X.
Xxxxxx Securities Ltd. or their respective successors.
"Reference Dealer Rate" means with respect to the Reference Dealer and any
redemption date, the midmarket annual yield to maturity, as determined by the
Reference Dealer, of the German Government Bund 6.00% due January 2007 or, if
that security is no longer outstanding, a similar security in the reasonable
judgment of the Reference Dealer, at 11:00 a.m. (London time) on the fifth
business day in London preceding such redemption date quoted in writing to the
trustee by such Reference Dealer.
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. Denominations; Transfer. (a) The Notes are issuable in registered form
without coupons in denominations of Euro 1,000 and any multiple of Euro 1,000
at the office or agency of the Issuer in the Borough of Manhattan, The City of
New York, in London or in Luxembourg and in the manner and subject to the
limitations provided in the Indenture.
(b) Upon due presentment for registration of transfer of this Note at
the offce or agency of the Issuer in the Borough of Manhattan, The
City of New York, in London or in Luxembourg 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
40
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.
8. 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.
9. 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.
10. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Notes other than Holders of Unrestricted Global Notes
and Holders of Unrestricted Definitive Notes shall have all the rights set
forth in the Registration Rights Agreement, dated as of April 4, 2000, among
the Issuer, Tyco International Ltd. and the parties named on the signature
pages thereof.
41
11. Governing Law. The laws of the State of New York govern the Indenture
and this Note.
42
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfers) 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.
43
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE1
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in the Global Note, have
been made:
Principal Amount of Principal amount Signature of
Amount of Decrease Amount of Increase of this Global Note Authorized Officer
in Principal Amount in Principal Amount following such of Trustee or Note
Date of Exchange of this Global Note of this Global Note Decrease (or Increase) Custodian
---------------- ------------------- ------------------- ---------------------- ------------------
--------
1 This Schedule may be used by the Trustee in respect of a Global Note,
and, if so used, shall be deemed a part thereof for all purposes.
44
EXHIBIT A - Regulation S Global Note
TYCO INTERNATIONAL GROUP S.A.
6-1/8% Note due 2007
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 THE NOTE MAY ONLY BE HELD THROUGH EUROCLEAR AND CLEARSTREAM, LUXEMBOURG.
THIS GLOBAL NOTE IS HELD BY THE COMMON 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 DESCRIBED IN THE SUPPLEMENTAL INDENTURE
N0.13, (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.
45
EXHIBIT A - Regulation S Global Note
TYCO INTERNATIONAL GROUP S.A.
6-1/8 % Note due 2007
No. _______ CUSIP: L93727 AG7
Common Code: 10982758
Euro ___________ ISIN: XS0109827583
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), for
value received, hereby promises to pay to The Bank of New York Depository
(Nominees) Limited or registered assigns, the principal sum of _________ Euro
on April 4, 2007, at the offce or agency of the Issuer in the Borough of
Manhattan, The City of New York, in London or in Luxembourg, in euro, and to
pay interest thereon annually on April 4 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 April 4, 2001, 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 April
4, 2000 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. To the extent interest is required to be calculated for a period
of less than one year, it will be calculated on the basis of the actual number
of days elapsed divided by the actual number of days in the period from and
including the immediately preceding Interest Payment Date to but excluding the
next Interest Payment Date.
For purposes of this Note, "Business Day" means any day other than a
Saturday, a Sunday or a day on which commercial banks and foreign exchange
markets in the place of presentation are closed and on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
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 registered at the close of business on the March 20
(whether or not a Business Day) immediately preceding such Interest Payment
Date (each, a "Regular Record 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
46
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.
All references in the Notes (and related Guarantees) to interest shall
include any Additional Interest or Additional Amounts.
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.
47
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this
instrument to be signed by its duly authorized Managing Directors.
Dated: April 4, 2000
TYCO INTERNATIONAL GROUP S. A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
48
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
49
GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Note the
payment of principal of, and interest on, the Note 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. All references in this Guarantee
to interest shall include any Additional Amounts or Additional Interest.
Dated: Xxxxx 0, 0000
XXXX INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
Chief Financial Officer
50
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
6-1/8% Notes due 2007
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 2007 of the Issuer, initially limited in aggregate principal
amount to Euro 600,000,000, 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. 13, dated as of April 4, 2000 (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 provided in
the Indenture.
(c) All capitalized terms used in this Note (or the related
Guarantee) 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, Tyco 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 provided in the Indenture, 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
51
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
Holder of each Security so affected, (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 or (iii) 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.
(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 hereof, 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 but not in part, at the
option of the Issuer, at any time upon not less than 30 nor more than 60 days'
notice (which notice shall be irrevocable) at a redemption price equal to the
greater of (i) 100% of the principal amount of this Note or (ii) as determined
by the Reference Dealer, (A) 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 redemption date on an annual basis (based on the actual number of days
elapsed
52
divided by 365 (or, if any of those days elapsed fall in a leap year, the sum
of (x) the number of those days falling in a leap year divided by 366 and (y)
the number of those days falling in a non-leap year divided by 365)) at the
Reference Dealer Rate, plus 10 basis points, plus (B) in each case, accrued
interest thereon to the date of redemption. This Note is also subject to
redemption upon certain events of taxation to the extent provided in Article
Twelve of the Indenture.
"Reference Dealer" means either of Xxxxxxx Xxxxx International or X.X.
Xxxxxx Securities Ltd. or their respective successors.
"Reference Dealer Rate" means with respect to the Reference Dealer and
any redemption date, the midmarket annual yield to maturity, as determined by
the Reference Dealer, of the German Government Bund 6.00% due January 2007 or,
if that security is no longer outstanding, a similar security in the reasonable
judgment of the Reference Dealer, at 11:00 a.m. (London time) on the fifth
business day in London preceding such redemption date quoted in writing to the
trustee by such Reference Dealer.
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. Denominations; Transfer. (a) The Notes are issuable in registered form
without coupons in denominations of Euro 1,000 and any multiple of Euro 1,000
at the offce or agency of the Issuer in the Borough of Manhattan, The City of
New York, in London or in Luxembourg and in the manner and subject to the
limitations provided in the Indenture.
(b) Upon due presentment for registration of transfer of this Note at
the offce or agency of the Issuer in the Borough of Manhattan, The
City of New York, in London or in Luxembourg 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
53
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.
8. 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.
9. 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.
10. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Notes other than Holders of Unrestricted Global Notes
and Holders of Unrestricted Definitive Notes shall have all the rights set
forth in the Registration Rights Agreement, dated as of August 31, 1999, among
the Issuer, Tyco International Ltd. and the parties named on the signature
pages thereof.
54
11. Governing Law. The laws of the State of New York govern the Indenture
and this Note.
55
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 LARGEMENT 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.
56
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE1
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in the Global Note, have
been made:
Principal Amount of Principal amount Signature of
Amount of Decrease Amount of Increase of this Global Note Authorized Officer
in Principal Amount in Principal Amount following such of Trustee or Note
Date of Exchange of this Global Note of this Global Note Decrease (or Increase) Custodian
---------------- ------------------- ------------------- ---------------------- ------------------
--------
1 This Schedule may be used by the Trustee in respect of a Global
Note, and, if so used, shall be deemed a part thereof for all purposes.
57
EXHIBIT A - Unrestricted Global Note
TYCO INTERNATIONAL GROUP S.A.
6-1/8% Note due 2007
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 DESCRIBED IN SUPPLEMENTAL INDENTURE NO.
13, (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.
58
TYCO INTERNATIONAL GROUP S.A.
6-1/8 % Note due 2007
No. ___
Euro _____________ CUSIP:
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"),
for value received, hereby promises to pay to CEDE & CO. or registered assigns,
the principal sum of ___________________ Euro on April 4, 2007, at the office
or agency of the Issuer in the Borough of Manhattan, The City of New York, in
London or in Luxembourg in euro, and to pay interest thereon annually on April
4 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 April 4, 2001, 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 April 4, 2000 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. To the extent interest is
required to be calculated for a period of less than one year, it will be
calculated on the basis of the actual number of days elapsed divided by the
actual number of days in the period from and including the immediately
preceding Interest Payment Date to but excluding the next Interest Payment
Date.
For purposes of this Note, "Business Day" means any day other than a
Saturday, a Sunday or a day on which commercial banks and foreign exchange
markets in the place of presentation are closed and on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
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 registered at the close of business on the March 20
(whether or not a Business Day immediately preceding such Interest Payment
Date) (each, a "Regular Record 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
59
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.
All references in the Notes (and related Guarantees) to interest shall
include any Additional interest or Additional Amounts.
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.
60
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has
caused this instrument to be signed by its duly authorized Managing Directors.
Dated: April 4, 2000
TYCO INTERNATIONAL GROUP S. A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
61
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
62
GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Note the
payment of principal of, and interest on, the Note 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. All references in this Guarantee
to interest shall include any Additional Amounts or Additional Interest.
Dated: Xxxxx 0, 0000
XXXX INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxx
-----------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
Chief Financial Officer
63
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
6-1/8% Notes due 2007
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 2007 of the Issuer, initially limited in aggregate principal
amount to Euro 600,000,000, 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. 13, dated as of April 4, 2000 (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 (or the related
Guarantee) 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, Tyco 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
64
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 Holder of
each Security so affected, (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 or (iii)
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.
(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 hereof, 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 but not in part, at the
option of the Issuer, at any time upon not less than 30 nor more than 60 days'
notice (which notice shall be irrevocable) at a redemption price equal to the
greater of (i) 100% of the principal amount of this Note or (ii) as determined
by the Reference Dealer, (A) 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 redemption date on an annual basis (based on the actual number of days
elapsed
65
divided by 365 (or, if any of those days elapsed fall in a leap year, the sum
of (x) the number of those days falling in a leap year divided by 366 and (y)
the number of those days falling in a non-leap year divided by 365)) at the
Reference Dealer Rate, plus 10 basis points, plus (B) in each case, accrued
interest thereon to the date of redemption. This Note is also subject to
redemption upon certain events of taxation to the extent provided in Article
Twelve of the Indenture.
"Reference Dealer" means either of Xxxxxxx Xxxxx International or X.X.
Xxxxxx Securities Ltd. or their respective successors.
"Reference Dealer Rate" means with respect to the Reference Dealer and any
redemption date, the midmarket annual yield to maturity, as determined by the
Reference Dealer, of the German Government Bund 6.00% due January 2007 or, if
that security is no longer outstanding, a similar security in the reasonable
judgment of the Reference Dealer, at 11:00 a.m. (London time) on the fifth
business day in London preceding such redemption date quoted in writing to the
trustee by such Reference Dealer.
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. Denominations; Transfer. (a) The Notes are issuable in registered form
without coupons in denominations of Euro 1,000 and any multiple of Euro 1,000
at the office or agency of the Issuer in the Borough of Manhattan, The City of
New York, in London or in Luxembourg and in the manner and subject to the
limitations provided in the Indenture.
(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, in London or in Luxembourg 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
66
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.
8. 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.
9. 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.
10. Governing Law. The laws of the State of New York govern the Indenture
and this Note.
67
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.
68
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Tyco International Group S.A.
0, xxxxxx Xxxxx Xxxxxx
X-0000
Xxxxxxxxxx
The Bank of New York
Corporate Trust Administration
000 Xxxxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxx Xxxx, XX 00000
Re: 6-1/8% Notes due 2007
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of June 9, 1998, and
the Supplemental Indenture No. 13 dated April 4, 2000 (collectively, the
"Indenture") among Tyco International Group S.A., Tyco International Ltd. and
The Bank of New York as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
_________________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of (U)____________ in such Note[s] or interests (the
"Transfer"), to (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
[____]1. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN A 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE
144A. The Transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is
a "qualified institutional
69
buyer" within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
[____]2. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Note, the Temporary
Regulation S Global Note and/or the Definitive Note and in the Indenture and
the Securities Act.
[____]3. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A RESTRICTED DEFINITIVE
NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Regulation S Global Notes,
Rule 144A Global Notes, and Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities laws
of any state of the United States, and accordingly the Transferor hereby
further certifies that such transfer is being effected pursuant to and in
compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 903
70
or Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the
United States.
[ ]4. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
[ ] (a) CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Note, the Rule 144A Global Notes, the Restricted Definitive Notes and in the
Indenture.
[ ] (b) CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Rule 144A Global Notes, the Restricted
Definitive Notes and in the Indenture.
[ ] (c) CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903
or Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Regulation S
71
Global Notes, the Rule 144A Global Notes, the Restricted Definitive Notes and
in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
------------------------------------
[Insert Name of Transferor]
By:
---------------------------------
------------------------------------
Name:
Title:
Dated: _____________ __, ____.
72
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
[ ] (a) a beneficial interest in the:
[ ] (i) 144A Global Note (CUSIP _______), or
[ ] (ii) Regulation S Global Note (CUSIP _______),
[ ] (b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
[ ] (a) a beneficial interest in the:
[ ] (i) 144A Global Note (CUSIP _______), or
[ ] (ii) Regulation S Global Note (CUSIP _______), or
[ ] (iii) Unrestricted Global Note (CUSIP _______); or
[ ] (b) a Restricted Definitive Note; or
[ ] (c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
73
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Tyco International Group S.A.
0, xxxxxx Xxxxx Xxxxxx
X-0000
Xxxxxxxxxx
The Bank of New York
Corporate Trust Administration
000 Xxxxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxx Xxxx, XX 00000
Re: 6-1/8% Notes due 2007
(CUSIP _______)
Reference is hereby made to the Indenture, dated as of June 9, 1998, and
the Supplemental Indenture No. 13 dated April 4, 2000 (collectively, the
"Indenture") among Tyco International Group S.A., Tyco International Ltd. and
the Bank of New York.
____________, (the "Owner") owns and proposes to exchange its interest in
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of (U)________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
[ ] 1. CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A REGULATION S
GLOBAL NOTE OR RULE 144A GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE. In connection with the Exchange of the Owner's beneficial interest
in a Regulation S Global Note or Rule 144A Global Note for a beneficial
interest in an Unrestricted Global Note in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the United States Securities Act of 1933, as
amended (the "Securities Act"), (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in
74
compliance with any applicable blue sky securities laws of any state of the
United States.
[ ] 2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
REGULATION S GLOBAL NOTES OR RULE 144A GLOBAL NOTES FOR RESTRICTED DEFINITIVE
NOTES OR BENEFICIAL INTERESTS IN REGULATION S GLOBAL NOTES OR RULE 144A GLOBAL
NOTES
[ ] (a) CHECK IF EXCHANGE IS TO A RESTRICTED DEFINITIVE NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Rule 144A
Global Note or a Regulation S Global Notes for a Restricted Definitive Note
with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner's own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Note and in the Indenture and the Securities Act.
[ ] (b) CHECK IF EXCHANGE IS TO BENEFICIAL INTEREST IN A RULE 144A GLOBAL
NOTE OR A REGULATION S GLOBAL NOTE: In connection with the Exchange of the
Owner's Note for a beneficial interest in the [CHECK ONE] [ ] Rule 144A Global
Note, [ ] Regulation S Global Note, with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Rule 144A Global
Notes or Regulation S Global Notes or Restrictive Definitive Notes and pursuant
to and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Rule 144A
Global Notes or Regulation S Global Notes, as the case may be, and in the
Indenture and the Securities Act.
75
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
---------------------------
[Insert Name of Owner]
By:
------------------------
---------------------------
Name:
Title:
Dated:______________, ___.
76
