Exhibit 4.1


 


	
   

  	
   

  	
   

  



TYCO INTERNATIONAL FINANCE S.A.,


as Issuer


 


AND


 


TYCO INTERNATIONAL LTD.,


as Guarantor


 


AND


 


DEUTSCHE BANK TRUST

COMPANY AMERICAS,


as Trustee


 


INDENTURE


 


Dated as of January 9, 2009


 


UNSUBORDINATED DEBT SECURITIES


	
   

  	
   

  	
   

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I. DEFINITIONS

  	
  1

  
	
             Section
  1.01

  	
  Definitions
  of Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II. ISSUE, DESCRIPTION, TERMS,
  EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES

  	
  8

  
	
             Section
  2.01

  	
  Designation
  and Terms of Securities

  	
  8

  
	
             Section
  2.02

  	
  Form of
  Securities and Trustee’s Certificate

  	
  11

  
	
             Section
  2.03

  	
  Denominations;
  Provisions for Payment

  	
  13

  
	
             Section
  2.04

  	
  Execution
  and Authentications

  	
  15

  
	
             Section
  2.05

  	
  Transfer and
  Exchange

  	
  16

  
	
             Section
  2.06

  	
  Temporary
  Securities

  	
  23

  
	
             Section
  2.07

  	
  Mutilated,
  Destroyed, Lost or Stolen Securities

  	
  24

  
	
             Section
  2.08

  	
  Cancellation

  	
  24

  
	
             Section
  2.09

  	
  Third Party
  Beneficiaries

  	
  25

  
	
             Section
  2.10

  	
  Authenticating
  Agent

  	
  25

  
	
             Section
  2.11

  	
  Global
  Securities

  	
  25

  
	
             Section
  2.12

  	
  CUSIP
  Numbers

  	
  26

  
	
             Section
  2.13

  	
  Securities
  Denominated in Foreign Currencies

  	
  26

  
	
             Section
  2.14

  	
  Wire
  Transfers

  	
  26

  
	
             Section
  2.15

  	
  Designated
  Currency

  	
  27

  
	
             Section
  2.16

  	
  Form of
  Guarantee

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE III. REDEMPTION OF SECURITIES AND
  SINKING FUND PROVISIONS

  	
  28

  
	
             Section
  3.01

  	
  Redemption

  	
  28

  
	
             Section
  3.02

  	
  Notice of
  Redemption

  	
  28

  
	
             Section
  3.03

  	
  Payment Upon
  Redemption

  	
  29

  
	
             Section
  3.04

  	
  Sinking Fund

  	
  30

  
	
             Section
  3.05

  	
  Satisfaction
  of Sinking Fund Payments with Securities

  	
  30

  
	
             Section
  3.06

  	
  Redemption
  of Securities for Sinking Fund

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV. CERTAIN COVENANTS

  	
  31

  
	
             Section
  4.01

  	
  Payment of
  Principal, Premium and Interest

  	
  31

  
	
             Section
  4.02

  	
  Maintenance
  of Office or Agency

  	
  31

  
	
             Section
  4.03

  	
  Paying
  Agents

  	
  31

  
	
             Section
  4.04

  	
  Statement by
  Officers as to Default

  	
  32

  
	
             Section
  4.05

  	
  Appointment
  to Fill Vacancy in Office of Trustee

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE V. SECURITYHOLDERS’ LISTS AND
  REPORTS BY THE COMPANY AND THE TRUSTEE

  	
  33

  
	
             Section
  5.01

  	
  Company to
  Furnish Trustee Names and Addresses of Securityholders

  	
  33

  
	
             Section
  5.02

  	
  Preservation
  of Information; Communications with Securityholders

  	
  33

  
	
             Section
  5.03

  	
  Reports by
  the Company

  	
  33

  



 


i

















 


	
             Section
  5.04

  	
  Reports by
  the Trustee

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI. REMEDIES OF THE TRUSTEE AND
  SECURITYHOLDERS ON EVENT OF DEFAULT

  	
  34

  
	
             Section
  6.01

  	
  Events of
  Default

  	
  34

  
	
             Section
  6.02

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
  36

  
	
             Section
  6.03

  	
  Application
  of Funds Collected

  	
  37

  
	
             Section
  6.04

  	
  Limitation
  on Suits

  	
  38

  
	
             Section
  6.05

  	
  Rights and
  Remedies Cumulative; Delay or Omission not Waiver

  	
  38

  
	
             Section
  6.06

  	
  Control by
  Securityholders

  	
  39

  
	
             Section
  6.07

  	
  Undertaking
  to Pay Costs

  	
  40

  
	
             Section
  6.08

  	
  Waiver Of
  Usury, Stay Or Extension Laws

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. CONCERNING THE TRUSTEE

  	
  40

  
	
             Section
  7.01

  	
  Certain
  Duties and Responsibilities of Trustee

  	
  40

  
	
             Section
  7.02

  	
  Certain
  Rights of Trustee

  	
  41

  
	
             Section
  7.03

  	
  Trustee not
  Responsible for Recitals or Issuance of Securities

  	
  43

  
	
             Section
  7.04

  	
  May Hold
  Securities

  	
  43

  
	
             Section
  7.05

  	
  Funds Held
  in Trust

  	
  43

  
	
             Section
  7.06

  	
  Compensation
  and Reimbursement

  	
  43

  
	
             Section
  7.07

  	
  Reliance on
  Officer’s Certificate

  	
  44

  
	
             Section
  7.08

  	
  Disqualification;
  Conflicting Interests

  	
  44

  
	
             Section
  7.09

  	
  Corporate
  Trustee Required; Eligibility

  	
  44

  
	
             Section
  7.10

  	
  Resignation
  and Removal; Appointment of Successor

  	
  45

  
	
             Section
  7.11

  	
  Acceptance
  of Appointment By Successor

  	
  46

  
	
             Section
  7.12

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  47

  
	
             Section
  7.13

  	
  Preferential
  Collection of Claims Against the Company

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII. CONCERNING THE
  SECURITYHOLDERS

  	
  48

  
	
             Section
  8.01

  	
  Evidence of
  Action by Securityholders

  	
  48

  
	
             Section
  8.02

  	
  Proof of
  Execution by Securityholders

  	
  48

  
	
             Section
  8.03

  	
  Who May be
  Deemed Owners

  	
  49

  
	
             Section
  8.04

  	
  Certain
  Securities Owned by Company Disregarded

  	
  49

  
	
             Section
  8.05

  	
  Actions
  Binding on Future Securityholders

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX. SUPPLEMENTAL INDENTURES

  	
  50

  
	
             Section
  9.01

  	
  Supplemental
  Indentures Without the Consent of Securityholders

  	
  50

  
	
             Section
  9.02

  	
  Supplemental
  Indentures with Consent of Securityholders

  	
  51

  
	
             Section
  9.03

  	
  Effect of
  Supplemental Indentures

  	
  52

  
	
             Section
  9.04

  	
  Securities
  Affected by Supplemental Indentures

  	
  52

  
	
             Section
  9.05

  	
  Execution of
  Supplemental Indentures

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE X. SUCCESSOR

  	
  53

  
	
             Section
  10.01

  	
  Consolidation,
  Merger and Sale of Assets

  	
  53

  
	
             Section
  10.02

  	
  Successor
  Person Substituted

  	
  54

  



 


ii

















 


	
  ARTICLE XI. SATISFACTION AND DISCHARGE

  	
  54

  
	
             Section
  11.01

  	
  Applicability
  of Article

  	
  54

  
	
             Section
  11.02

  	
  Satisfaction
  and Discharge of Indenture

  	
  54

  
	
             Section
  11.03

  	
  Defeasance
  and Discharge of Obligations; Covenant Defeasance

  	
  55

  
	
             Section
  11.04

  	
  Deposited
  Funds to be Held in Trust

  	
  57

  
	
             Section
  11.05

  	
  Payment of
  Funds Held by Paying Agents

  	
  57

  
	
             Section
  11.06

  	
  Repayment to
  Parent or the Company

  	
  57

  
	
             Section
  11.07

  	
  Reinstatement

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII. IMMUNITY OF INCORPORATORS,
  STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  58

  
	
             Section
  12.01

  	
  No Recourse

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII. MISCELLANEOUS PROVISIONS

  	
  59

  
	
             Section
  13.01

  	
  Effect on
  Successors and Assigns

  	
  59

  
	
             Section
  13.02

  	
  Actions by
  Successor

  	
  59

  
	
             Section
  13.03

  	
  Notices

  	
  59

  
	
             Section
  13.04

  	
  Governing
  Law

  	
  61

  
	
             Section
  13.05

  	
  Treatment of
  Securities as Debt

  	
  61

  
	
             Section
  13.06

  	
  Compliance
  Certificates and Opinions

  	
  61

  
	
             Section
  13.07

  	
  Payments on
  Business Days

  	
  62

  
	
             Section
  13.08

  	
  Conflict
  with Trust Indenture Act

  	
  62

  
	
             Section
  13.09

  	
  Counterparts

  	
  62

  
	
             Section
  13.10

  	
  Separability

  	
  62

  
	
             Section
  13.11

  	
  No Adverse
  Interpretation of Other Agreements

  	
  62

  
	
             Section
  13.12

  	
  Table of
  Contents, Headings, Etc

  	
  62

  
	
             Section
  13.13

  	
  Consent to
  Jurisdiction and Service of Process

  	
  62

  
	
             Section
  13.14

  	
  Waiver of
  Jury Trial

  	
  63

  
	
             Section
  13.15

  	
  USA Patriot
  Act

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV. ADDITIONAL AMOUNTS; CERTAIN
  TAX PROVISIONS

  	
  64

  
	
             Section
  14.01

  	
  Redemption
  Upon Changes in Withholding Taxes

  	
  64

  
	
             Section
  14.02

  	
  Payment of
  Additional Amounts

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV. GUARANTEES

  	
  68

  
	
             Section
  15.01

  	
  Guarantee

  	
  68

  
	
             Section
  15.02

  	
  Execution
  and Delivery of Guarantee

  	
  69

  
	
             Section
  15.03

  	
  Release of
  Guarantee

  	
  70

  



 


iii

















 


Cross Reference Table*


 


	
  Section of

  Trust Indenture Act

  of 1939, as amended

  	
   

  	
  Section of

  Indenture

  
	
   

  	
   

  	
   

  
	
   

  	
  310(a)

  	
  7.09

  
	
   

  	
  310(b)

  	
  7.08

  
	
   

  	
   

  	
  7.10

  
	
   

  	
  310(c)

  	
  Inapplicable

  
	
   

  	
  311(a)

  	
  7.13

  
	
   

  	
  311(b)

  	
  7.13

  
	
   

  	
  311(c)

  	
  Inapplicable

  
	
   

  	
  312(a)

  	
  5.01

  
	
   

  	
   

  	
  5.02(a)

  
	
   

  	
  312(b)

  	
  5.02(b)

  
	
   

  	
  312(c)

  	
  5.02(b)

  
	
   

  	
  313(a)

  	
  5.04(a)

  
	
   

  	
  313(b)

  	
  5.04(b)

  
	
   

  	
  313(c)

  	
  5.04(b)

  
	
   

  	
   

  	
  5.04(c)

  
	
   

  	
  313(d)

  	
  5.04(c)

  
	
   

  	
  314(a)

  	
  5.03

  
	
   

  	
  314(b)

  	
  Inapplicable

  
	
   

  	
  314(c)

  	
  13.06

  
	
   

  	
  314(d)

  	
  Inapplicable

  
	
   

  	
  314(e)

  	
  13.06

  
	
   

  	
  314(f)

  	
  Inapplicable

  
	
   

  	
  315(a)

  	
  7.01

  
	
   

  	
  315(b)

  	
  6.01(c)

  
	
   

  	
  315(c)

  	
  7.01(a)

  
	
   

  	
  315(d)

  	
  7.01(b)

  
	
   

  	
  315(e)

  	
  6.07

  
	
   

  	
  316(a)

  	
  6.06, 8.04

  
	
   

  	
  316(b)

  	
  6.04

  
	
   

  	
  316(c)

  	
  8.01

  
	
   

  	
  317(a)

  	
  6.02

  
	
   

  	
  317(b)

  	
  4.03

  
	
   

  	
  318(a)

  	
  13.08

  
				



 






*                             This Cross-Reference Table
does not constitute part of the Indenture and shall not have any bearing on the
interpretation of any of its terms or provisions.


 


iv
















 


THIS
INDENTURE is dated as of January 9, 2009 among TYCO INTERNATIONAL
FINANCE S.A., a Luxembourg company (the “Company”),
TYCO INTERNATIONAL LTD., a Bermuda company (“Parent”),
and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation (the “Trustee”).


 


RECITALS


 


A.                                   This Indenture provides for the issuance of
unsecured debt securities (the “Securities”),
in an unlimited aggregate principal amount to be issued from time to time in
one or more series, to be authenticated by the certificate of the Trustee, and
for guarantees of the Securities.


 


B.                                     This Indenture is subject to the provisions
of the Trust Indenture Act (as defined below) that are deemed to be
incorporated into this Indenture and shall, to the extent applicable, be
governed by such provisions.


 


C.                                     All things necessary to make this Indenture a
valid agreement, in accordance with its terms, have been done.


 


NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities
by the holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the holders of Securities:


 


ARTICLE I.


 


DEFINITIONS


 


Section 1.01                                Definitions of Terms.


 


The terms defined in this Section 1.01 (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.01 and shall include the
plural as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act or that are by reference in the Trust
Indenture Act defined in the Securities Act of 1933, as amended (the “Securities Act”) (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the execution of this instrument. All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting
principles, and the term “generally accepted accounting principles” means such
accounting principles as are generally accepted in the United States at the
time of any computation.


 


“144A Global Security”,
with respect to any series of Securities, means one or more Global Securities
bearing the Private Placement Legend that will be issued in an aggregate amount
of denominations equal in total to the outstanding principal amount of the
Securities of such series sold in global form in reliance on Rule 144A.


 

















 


“Additional Amounts” has
the meaning set forth in Section 14.02.


 


“Affiliate”, with respect
to any specified Person, means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control” when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through ownership
of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.


 


“Applicable Procedures”,
with respect to any transfer or exchange of or for beneficial interests in any
Global Security for a series of Securities, means the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange at the relevant time.


 


“Authenticating Agent”
means an authenticating agent with respect to all or any of the series of
Securities appointed with respect to all or any series of the Securities by the
Trustee pursuant to Section 2.10.


 


“Board of Directors” means
the Board of Directors of the Company or Parent, as applicable, or any duly
authorized committee of such Board of Directors.


 


“Board Resolution” means a
copy of a resolution certified by the Secretary or an Assistant Secretary of
the Company or Parent to have been duly adopted by its Board of Directors and
to be in full force and effect on the date of such certification.


 


“Business Day”, with
respect to any series of Securities, means any day other than Saturday, Sunday
or a day on which Federal or State banking institutions in the Borough of
Manhattan, The City of New York, or in the city where the office or agency for
payment on the Securities is maintained pursuant to Section 4.02, are
authorized or obligated by law, executive order or regulation to close.


 


“Capital Stock” of any
Person means any and all shares, interests, participations, rights in or other
equivalents (however designated) of such Person’s capital stock, other equity
interests whether now outstanding or issued after the date of this Indenture,
partnership interests (whether general or limited), any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person and
any rights (other than debt securities convertible into Capital Stock),
warrants or options exchangeable for or convertible into such Capital Stock.


 


“Clearstream” means
Clearstream Banking S.A., or its successors.


 


“Commission” means the
Securities and Exchange Commission.


 


“Company” means Tyco
International Finance S.A. until a successor entity shall have become such
pursuant to Article X, and thereafter “Company” shall mean such successor
entity.


 


2

















 


“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate
trust business shall be principally administered, which office at the date
hereof is located at 60 Wall Street, 27th Floor, New York, NY 10005.


 


“Currency” means Dollars
or Foreign Currency.


 


“Default” means any event,
act or condition that with notice or lapse of time, or both, would constitute
an Event of Default.


 


“Defaulted Interest” has the meaning set
forth in Section 2.03.


 


“Definitive Security”
means a certificated Security registered in the name of the Securityholder
thereof and issued in accordance with Section 2.05.


 


“Depositary”, with respect
to Securities of any series which the Company shall determine will be issued in
whole or in part as a Global Security, means The Depository Trust Company (“DTC”), New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Exchange
Act, and any other applicable U.S. or foreign statute or regulation, which, in
each case, shall be designated by the Company pursuant to Section 2.01.


 


“Designated Currency” has
the meaning set forth in Section 2.15.


 


“Distribution Compliance Period”
means the restricted period as defined in Rule 903(b)(3) under the Securities
Act.


 


“Dollar” or “$” means such currency of the United States
as at the time of payment is legal tender for the payment of public and private
debts.


 


“Dollar Equivalent” means,
with respect to any monetary amount in a Foreign Currency, at any time for the
determination thereof, the amount of Dollars obtained by converting such
Foreign Currency involved in such computation into Dollars at the spot rate for
the purchase of Dollars with the applicable Foreign Currency as quoted by
JPMorgan Chase Bank, N.A. (unless another comparable financial institution is
designated by the Company) in New York, New York, at approximately 11:00 a.m.
(New York time) on the date two business days prior to such determination.


 


“Euroclear” means
Euroclear Bank S.A./N.V., or its successor, as operator of the Euroclear
System.


 


“Event of Default”, with
respect to Securities of a particular series, means any event specified in
Section 6.01, continued for the period of time, if any, therein designated.


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended.


 


“Foreign Currency” means a
currency, currency unit or composite currency, including the euro, issued by
the government of one or more countries other than the United States or by any
recognized confederation or association of such governments or a composite
currency the 


 


3

















 


value of which is determined by reference to
the values of the currencies of any group of countries.


 


“Global Security”, with
respect to any series of Securities, means a Security executed by the Company
and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with this Indenture, which shall be registered
in the name of the Depositary or its nominee.


 


“Governmental Obligations”
means securities that are (i) direct obligations of the United States for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States, the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States that, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.


 


“Guarantee” means the
unconditional and unsubordinated guarantee by Parent of the due and punctual
payment of principal of and interest on a series of Securities when and as the
same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption or otherwise in accordance with the terms of
the Securities and this Indenture.


 


“herein,” “hereof” and “hereunder,” and other words of similar import, refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.


 


“including” means including without
limitation.


 


“Indenture” means this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into in
accordance with the terms hereof.


 


“Indirect Participant”
means any entity that, with respect to DTC, clears through or maintains a
direct or indirect, custodial relationship with a Participant.


 


“Interest Payment Date,”
when used with respect to any installment of interest on a Security of a
particular series, means the date specified herein, in such Security or in a
Board Resolution or in an indenture supplemental hereto with respect to such
series as the fixed date on which an installment of interest with respect to
Securities of that series is due and payable.


 


“Officer” means any
managing director, the chairman or any vice chairman of the Board of Directors,
the chief executive officer, the president, the chief financial officer, any
vice president, the treasurer, any assistant treasurer, the secretary or any
assistant secretary of the Company or Parent, as the case may be.


 


4

















 


“Officer’s  Certificate” means a certificate, signed by
any managing director or by  the chairman
or any vice chairman of the Board of Directors, or the chief executive officer,
president, chief financial officer or vice president or  the secretary or any assistant secretary or
the treasurer or any assistant treasurer of the Company or Parent, as the case
may be, that is delivered to the Trustee in accordance with the terms hereof.
Each such certificate shall include the statements provided for in Section
13.06, if and to the extent required by the provisions thereof.


 


“Opinion of Counsel” means
an opinion in writing of legal counsel, who may be an Officer or employee of or
counsel for Parent or the Company, that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 13.06, if and to the extent required by the
provisions thereof.


 


“Original Issue Discount Security”
means a Security that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 6.01.


 


“Outstanding”, when used
with reference to Securities of any series, subject to the provisions of
Section 8.04, means, as of any particular time, all Securities of such
series authenticated and delivered by the Trustee under this Indenture, except:


 


(a)                                  Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;


 


(b)                                 Securities,
or portions thereof, for the payment or redemption of which funds in the
necessary amount shall have been deposited in trust with the Trustee or with
any paying agent other than the Company, or, if the Company shall act as its
own paying agent, shall have been set aside, segregated and held in trust by
the Company for the Holders of such Securities, provided that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and


 


(c)                                  Securities
in substitution for which other Securities shall have been authenticated and
delivered, or which shall have been paid, pursuant to the terms of
Section 2.07, except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a person
in whose hands such Security is a legal, valid and binding obligation of the
Company.


 


In determining whether the holders of the requisite principal amount of
Outstanding Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to
Section 6.01 and the principal amount of a Security denominated in one or
more currencies that shall be deemed to be Outstanding for such purposes 


 


5

















 


shall be based on the Dollar Equivalent, on the date of original
issuance of such Security, of the principal amount of such Security.


 


“Parent” means Tyco
International Ltd. until a successor entity shall have become such pursuant to
Article X, and thereafter “Parent” shall mean such successor entity.


 


“Participant”, with
respect to the Depositary, Euroclear or Clearstream, means a Person who has an
account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and Clearstream).


 


“Periodic Offering” means
an offering of Securities of a series from time to time, during which any or
all of the specific terms of the Securities, including the rate or rates of
interest, if any, thereon, the maturity or maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by
the Company or its agents upon the issuance of such Securities in accordance
with the terms of the relevant Supplemental Indenture.


 


“Person” means any
individual, corporation, limited liability company, partnership, joint venture,
joint-stock company, unincorporated organization or government or any agency or
political subdivision thereof.


 


“Predecessor Security” of
any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security. For the
purposes of this definition, any Security authenticated and delivered under
Section 2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the lost, destroyed or stolen Security.


 


“Private Placement Legend”
means the legend set forth in Section 2.02(b) to be placed on all Restricted
Securities issued under this Indenture or pursuant to a Board Resolution or an
indenture supplemental hereto with respect to a series of Securities, except
where specifically stated otherwise by the provisions of this Indenture, such
Board Resolution or such supplemental indenture.


 


“QIB” means a “qualified
institutional buyer” as defined in Rule 144A.


 


“Regulation S Global Security”
means, with respect to any series of Securities, a Regulation S Temporary
Global Security of such series, if required by Rule 903 of Regulation S, or a
Regulation S Permanent Global Security of such series, as the case may be.


 


“Regulation S Permanent Global
Security”, with respect to any series of Securities, means one or
more permanent Global Securities bearing the Private Placement Legend, that
will be issued in an aggregate amount of denominations equal in total to the
outstanding principal amount of the Securities of such series initially sold
or, if required by Rule 903 of Regulation S, of the Regulation S Temporary
Global Security of such series upon expiration of the Distribution Compliance
Period with respect to such series, as the case may be.


 


“Regulation S Temporary Global
Security”, with respect to any series of Securities, means one or
more temporary Global Securities, bearing the Private Placement Legend and the
Regulation S Temporary Global Security Legend, issued in an aggregate amount of



 


6

















 


denominations equal in total to the outstanding principal amount of the
Securities of such series initially sold, if required by Rule 903 of Regulation
S.


 


“Regulation S Temporary Global
Security Legend” means the legend set forth in Section 2.02(d),
which is required to be placed on all Regulation S Temporary Global Securities
issued under this Indenture.


 


“Regulation S” means
Regulation S promulgated under the Securities Act, as it may be amended from
time to time, and any successor provision thereto.


 


“Responsible Officer”
means any vice president, any trust officer, any assistant trust officer, any
assistant vice president, any assistant treasurer, or any other officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.


 


“Restricted Definitive Security”,
with respect to any series of Securities, means one or more Definitive
Securities of such series bearing the Private Placement Legend issued under
this Indenture.


 


“Restricted Global Security”,
with respect to any series of Securities, means one or more Global Securities
of such series bearing the Private Placement Legend, issued under this
Indenture.


 


“Restricted Security”,
with respect to any series of Securities, means a Security of such series,
unless or until it has been (i) effectively registered under the Securities Act
and disposed of in accordance with a registration statement with respect to
such series or (ii) distributed to the public pursuant to Rule 144 under the
Securities Act or any similar provision then in force.


 


“Rule 144A” means Rule
144A promulgated under the Securities Act, as it may be amended from time to
time, and any successor provision thereto.


 


“Securities” means the
securities authenticated and delivered under this Indenture.


 


“Securityholder,” “Holder,” “holder
of Securities,” “registered
holder,” or other similar term, means the Person or Persons in whose
name or names a particular Security shall be registered on the books of the
Company kept for that purpose in accordance with the terms of this Indenture.


 


“Security Register” has
the meaning set forth in Section 2.05(a).


 


“Security Registrar” has
the meaning set forth in Section 2.05(a).


 


“Stated Maturity”, with
respect to any Security, means the date specified in such security as the fixed
date on which the payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision, but excluding any
provision providing for the repurchase of such security at the option of the
holder thereof upon the 


 


7

















 


happening of any contingency beyond the control of the issuer unless
such contingency has occurred.


 


“Subsidiary”, with respect
to any Person, means any other Person of which at least a majority of the
outstanding Voting Stock at the time is owned or controlled directly or
indirectly by such Person or by one or more Subsidiaries of such Person or by
such Person and one or more Subsidiaries of such Person.


 


“Taxes” has the meaning
set forth in Section 14.02.


 


“Taxing Jurisdiction” has
the meaning set forth in Section 14.01.


 


“Trustee” means Deutsche
Bank Trust Company Americas and, subject to the provisions of Article VII,
shall include its successors and assigns. The term “Trustee” as used with
respect to a particular series of the Securities shall mean the Trustee with respect
to that series.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as in effect at the date of
execution of this instrument subject to the provisions of Sections 9.01, 9.02,
and 10.01.


 


“Unrestricted Definitive Security”,
with respect to any series of Securities, means one or more Definitive
Securities representing such series of Securities that do not bear and are not
required to bear the Private Placement Legend, issued under this Indenture.


 


“Unrestricted Global Security”,
with respect to any series of Securities, means one or more permanent Global
Securities representing such series of Securities that do not bear and are not
required to bear the Private Placement Legend, issued under this Indenture.


 


“Unrestricted Securities”,
with respect to any series of Securities, means a Security (i) effectively
registered under the Securities Act and disposed of in accordance with a
registration statement with respect to such series or (ii) distributed to the
public pursuant to Rule 144 under the Securities Act or any similar provision
then in force.


 


“Voting Stock” of a Person
means Capital Stock of such Person of the class or classes pursuant to which
the holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of
such Person, irrespective of whether or not at the time Capital Stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency.


 


ARTICLE II.


 


ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND

EXCHANGE OF SECURITIES


 


Section 2.01                                Designation and Terms of Securities.


 


(a)                                  The
aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in
one or more series 


 


8

















 


up to the aggregate principal amount of Securities of that series from
time to time authorized by or pursuant to a Board Resolution of the Company or
pursuant to one or more indentures supplemental hereto. Prior to the initial
issuance of Securities of any series, there shall be established in or pursuant
to a Board Resolution of the Company, and set forth in an Officer’s Certificate
of the Company, or established in one or more indentures supplemental hereto,
with respect to the Securities of the series:


 


(1)                                  the
title of the Security of the series, which shall distinguish the Securities of
the series from all other Securities;


 


(2)                                  any
limit upon the aggregate principal amount of the Securities of that series that
may be authenticated and delivered under this Indenture, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, other Securities of that series;


 


(3)                                  the
date or dates on which the principal and premium, if any, of the Securities of
the series is payable;


 


(4)                                  the
rate or rates, which may be fixed or variable, at which the Securities of the
series shall bear interest or the manner of calculation of such rate or rates,
if any, including any procedures to vary or reset such rate or rates, and the
basis upon which interest will be calculated if other than that of a 360 day
year of twelve 30-day months;


 


(5)                                  the
date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest will be payable or the manner of determination of such
Interest Payment Dates, and the record date for the determination of holders to
whom interest is payable on any such Interest Payment Dates;


 


(6)                                  any
trustees, authenticating agents or paying agents with respect to such series,
if different from those set forth in this Indenture;


 


(7)                                  the
right, if any, to extend the interest payment periods or defer the payment of
interest and the duration of such extension or deferral;


 


(8)                                  the
period or periods within which, the price or prices at which and the terms and
conditions upon which, Securities of the series may be redeemed, in whole or in
part, at the option of the Company;


 


(9)                                  the
obligation, if any, of the Company to redeem, purchase or repay Securities of
the series pursuant to any sinking fund or analogous provisions, including
payments made in cash in anticipation of future sinking fund obligations, or at
the option of a holder thereof and the period or periods within which, the
price or prices at which, and the terms and conditions upon which, Securities
of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;


 


(10)                            the
form of the Securities of the series including the form of the Trustee’s
certificate of authentication for such series;


 


9
















 


(11)                            if
other than denominations of $1,000 or any integral multiple thereof, the
denominations in which the Securities of the series shall be issuable;


 


(12)                            the
Currency or Currencies in which payment of the principal of, premium, if any,
and interest on, Securities of the series shall be payable;


 


(13)                            if
the principal amount payable at the Stated Maturity of Securities of the series
will not be determinable as of any one or more dates prior to such Stated
Maturity, the amount which will be deemed to be such principal amount as of any
such date for any purpose, including the principal amount thereof that will be
due and payable upon declaration of the maturity thereof pursuant to Section
6.01 or upon any maturity other than the Stated Maturity or that will be deemed
to be Outstanding as of any such date, or, in any such case, the manner in
which such deemed principal amount is to be determined;


 


(14)                            the
terms of any repurchase or remarketing rights;


 


(15)                            if
the Securities of the series shall be issued in whole or in part in the form of
a Global Security or Securities, the type of Global Security to be issued; the
terms and conditions, if different from those contained in this Indenture, upon
which such Global Security or Securities may be exchanged in whole or in part
for other individual Securities in definitive registered form; the Depositary
for such Global Security or Securities; and the form of any legend or legends
to be borne by any such Global Security or Securities in addition to or in lieu
of the legends referred to in Section 2.02;


 


(16)                            whether
the Securities of the series will be convertible into or exchangeable for other
Securities, common shares or other securities of any kind of the Company or
another obligor, and, if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, including the initial
conversion or exchange price or rate or the method of calculation, how and when
the conversion price or exchange ratio may be adjusted, whether conversion or exchange
is mandatory, at the option of the holder or at the Company’s option, the
conversion or exchange period, and any other provision in addition to or in
lieu of those described herein;


 


(17)                            any
additional restrictive covenants or Events of Default that will apply to the
Securities of the series, or any changes to the restrictive covenants set forth
in Article IV or the Events of Default set forth in Section 6.01 that
will apply to the Securities of the series, which may consist of establishing
different terms or provisions from those set forth in Article IV or
Section 6.01 or eliminating any such restrictive covenant or Event of
Default with respect to the Securities of the series;


 


(18)                            any
provisions granting special rights to holders when a specified event occurs;


 


(19)                            if
the amount of principal of or any premium or interest on Securities of a series
may be determined with reference to an index or pursuant to a formula, the
manner in which such amounts will be determined;


 


(20)                            any
special tax implications of the Securities, including provisions for 


 


10

















 


original issue
discount securities, if offered;


 


(21)                            whether
and upon what terms Securities of a series may be defeased if different from
the provisions set forth in this Indenture;


 


(22)                            with
regard to the Securities of any series that do not bear interest, the dates for
certain required reports to the Trustee;


 


(23)                            whether
the Securities of the series will be issued as Unrestricted Securities or Restricted
Securities, and, if issued as Restricted Securities, the rule or regulation
promulgated under the Securities Act in reliance on which they will be sold;
and


 


(24)                            any
and all additional, eliminated or changed terms that shall apply to the Securities
of the series, including any terms that may be required by or advisable under
United States laws or regulations, including the Securities Act and the rules
and regulations promulgated thereunder, or advisable in connection with the
marketing of Securities of that series.


 


(b)                                 All Securities of any one series shall be
substantially identical except that Securities of any particular series may be
issued at various times, in different denominations, with different currency of
payments due thereunder, with different dates on which the principal or any
installment of principal is payable, with different rates of interest, if any,
or different methods by which rates of interest may be determined, with
different dates from which such interest may accrue or on which such interest
may be payable, and with different redemption dates, and except as may
otherwise be provided in or pursuant to any such Board Resolution or in any
supplemental indenture. If any of the terms of the series are
established by action taken pursuant to a Board Resolution of the Company, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officer’s Certificate of the Company setting
forth the terms of the series. The
terms of the Securities of any series may provide that such Securities shall be
authenticated and delivered by the Trustee upon original issuance from time to
time upon written order of persons designated in such Board Resolution or
supplemental indenture and that such persons are authorized to determine,
consistent with such Board Resolution or supplemental indenture, such terms and
conditions of the Securities of such series.


 


Section 2.02                                Form of Securities and Trustee’s Certificate.


 


(a)                                  The
Securities of any series and the Trustee’s certificate of authentication to be
borne by such Securities shall be substantially of the tenor  set forth in an indenture supplemental hereto
or as provided in a Board Resolution of the Company and as set forth in an
Officer’s Certificate of the Company and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Indenture, any Board
Resolution or any indenture supplemental hereto, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which Securities of that series
may be listed, or to conform to usage.


 


11

















 


(b)                                 Each
Restricted Security (and all Restricted Securities issued in exchange therefor
or substitution thereof) shall bear a Private Placement Legend in substantially
the following form:


 


“THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE “SECURITIES ACT”). THIS SECURITY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT
THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.


 


THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT
OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.”


 


(c)                                  To
the extent required by the Depositary for particular series of Securities, each
Global Security of such series shall bear legends in substantially the
following forms:


 


“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE HOLDERS OF BENEFICIAL INTERESTS HEREIN, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL
SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.05(C)
OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO 


 


12

















 


THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.”


 


“UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR 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. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF ANY ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY (AND ANY PAYMENT IS MADE TO SUCH ENTITY AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.”


 


(d)                                 To
the extent required by the Depositary, each Regulation S Temporary Global Security
shall bear a legend in substantially the following form:


 


“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE
SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE HOLDER OF BENEFICIAL INTERESTS IN THIS REGULATION S TEMPORARY
SECURITY SHALL BE ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE
PERIOD WHICH SUCH HOLDER HOLDS THIS SECURITY. NOTHING IN THIS LEGEND SHALL BE
DEEMED TO PREVENT INTEREST FROM ACCRUING ON THIS SECURITY.”


 


Section 2.03                                Denominations; Provisions for Payment.


 


The Securities shall be issuable as registered Securities and in the
denominations of $1,000 or any integral multiple thereof, subject to Section
2.01(a)(11). The Securities of a particular series shall bear interest payable
on the dates and at the rate specified as provided in Section 2.01 with respect
to that series. The principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in Dollars except as otherwise specified pursuant to
Section 2.01(a)(12), at the office or agency of the Company maintained for that
purpose pursuant to Section 4.02. Each Security shall be dated the date of its
authentication. Unless otherwise specified with respect to a series of 


 


13

















 


Securities in accordance with the provisions of Section 2.01(a)(4),
interest on the Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.


 


The interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Security of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date,
interest on such Security will be paid upon presentation and surrender of such
Security as provided in Section 3.03.


 


Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of any
Securities pursuant to Section 2.01, the term “regular record date” as used in
this Section 2.03 with respect to a series of Securities shall mean a date
15 days immediately preceding any Interest Payment Date, whether or not such
day is a Business Day. Subject to the provisions of this Section 2.03,
each Security of a series delivered under this Indenture upon registration of
transfer or in exchange for or in lieu of any other Security of such series
shall carry the rights to interest accrued and unpaid, and to accrue, that were
carried by such other Security.


 


Unless otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 2.01, any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date for such Security (“Defaulted
Interest”) shall forthwith cease to be payable to the registered
holder on the relevant regular record date, and such Defaulted Interest shall
be paid by the Company, at its election, as provided in clause (1) or clause
(2) below.


 


(1)                                  The
Company may make payment of any Defaulted Interest on Securities to the Persons
in whose names such Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following manner: the
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee funds in an
amount equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such funds when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as provided in this clause (1). Thereupon the Trustee shall
fix a special record date for the payment of such Defaulted Interest which
shall not be more than 15 nor less than ten days prior to the date of the
proposed payment and not less than ten days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee promptly shall notify the
Company of such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at his or her address as it appears in the Security Register,
not less than ten days prior to such special record date. Notice of the
proposed 


 


14

















 


payment of such Defaulted Interest and the
special record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Securities, or their
respective Predecessor Securities, are registered on such special record date
and shall not be payable pursuant to the following clause (2).


 


(2)                                  The
Company may make payment of any Defaulted Interest on any Securities in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may be
required by such exchange.


 


Section 2.04                                Execution and Authentications.


 


The Securities shall be signed on behalf of the Company by any member
of the Board of Directors of the Company or by both (a) its president, chief
financial officer or vice president and (b) its secretary, any assistant
secretary, its treasurer or any assistant treasurer. Signatures may be in the
form of a manual or facsimile signature. In the case of Definitive Securities
of any series, such signatures may be imprinted or otherwise reproduced on such
Securities. The Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication by the Trustee.


 


A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee or by an Authenticating Agent. Such
signature shall be conclusive evidence, and the only evidence, that the
Security so authenticated has been duly authenticated and delivered hereunder.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company,  with the form of Guarantee
thereon executed by Parent, to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such
Securities, signed by an Officer (an “Authentication
Order”), and the Trustee in accordance with such written order shall
authenticate and deliver such Securities.


 


Notwithstanding the provisions of Section 2.01 and the preceding
paragraph, in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time
in  accordance with an Authentication
Order or such other procedures acceptable to the Trustee as may be specified by
or pursuant to a supplemental indenture or the written order of the Company
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. With respect to Securities of a series subject to a
Periodic Offering, the Trustee conclusively may rely, as to the authorization
by the Company of any of such Securities, the forms and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the written
order of the Company, Opinion of Counsel, Officer’s Certificate and other
documents delivered pursuant to this Section 2.04 at or prior to the time
of the first authentication of Securities of such series unless and until such
written order, Opinion of Counsel, Officer’s Certificate or other documents
have been superseded or revoked, and written notice thereof is provided to
Trustee, or expire by their terms.


 


15

















 


Section 2.05                                Transfer and Exchange.


 


(a)                                  Registration
of Transfer and Exchange. The Company shall keep, or cause to be kept, at
its office or agency designated for such purpose as provided in Section 4.02, a
register or registers (the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company
shall register the Securities and the transfers of Securities as provided in
this Article II and which at all reasonable times shall be open for inspection
by the Trustee. The registrar for the purpose of registering Securities and the
transfer of Securities as herein provided shall be appointed as authorized by
Board Resolution (the “Security Registrar”).
If the Company fails to appoint or maintain another entity as Security
Registrar, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Security Registrar.


 


To permit registrations of transfers and exchanges, the Company shall
execute a new Security or Securities of the same series as the Security
presented for a like aggregate principal amount and in authorized denominations,
and Parent shall execute the form of Guarantee or Guarantees thereon, and the
Trustee shall authenticate and deliver such Security or Securities upon receipt
of an Authentication Order. The Trustee shall not be required to register the
transfer of or exchange any Security selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.


 


All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and Parent, evidencing
the same indebtedness as the Securities surrendered upon such registration of
transfer or exchange. Prior to such due presentment for the registration of a
transfer of any Security, the Trustee, the Company, any paying agent and the
Security Registrar may deem and treat the Person in whose name any Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Securities and for all other
purposes, and none of the Trustee, the Company, the paying agent or the
Security Registrar shall be affected by notice to the contrary.


 


All certifications, Officer’s Certificates and Opinions of Counsel
required to be submitted to the Trustee pursuant to this Section 2.05 to effect
a registration of transfer or exchange may be submitted by facsimile, to be
followed by delivery of the original document to Trustee within three (3)
Business Days of delivery by facsimile.


 


(b)                                 Service
Charge. No service charge shall be payable by a holder of a beneficial
interest in a Global Security or by a Holder of a Definitive Security for any
exchange or registration of transfer of Securities, or for any issue of new
Securities in case of partial redemption of any series. The Company, however,
may require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than any such taxes or other governmental
charge payable upon exchange or registration of transfer pursuant to Sections
2.06, 3.03(b) and 9.04.


 


(c)                                  Transfer
and Exchange of Global Securities. A Global Security may not be transferred
except as a whole by the Depositary for a series of the Securities to a nominee
of such Depositary, by a nominee of such Depositary to such Depositary or to another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for a series of 


 


16

















 


the Securities or a nominee of such successor Depositary. If at any
time the Depositary for a series of the Securities notifies the Company that it
is unwilling or unable to continue as Depositary for such series or if at any
time the Depositary for such series shall no longer be registered or in good
standing under the Exchange Act or other applicable statute or regulation, and
a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
condition, the provisions of Section 2.11 shall no longer be applicable to the
Securities of such series. In addition, the Company may at any time determine
that the Securities of any series shall no longer be represented by a Global
Security and that the provisions of Section 2.11 shall no longer apply to the
Securities of such series. In either such event the Company will execute the
Definitive Securities of such series, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such series, and Parent will execute the form of Guarantees thereon, and
subject to this Section 2.05 the Trustee, upon receipt of an Officer’s
Certificate evidencing such determination by the Company, if applicable, will
authenticate and deliver such Definitive Securities in exchange for such Global
Security. Upon the exchange of the Global Security of such series for such
Definitive Securities of such series, the Global Security shall be canceled by
the Trustee. Such Definitive Securities shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its Participants or Indirect Participants or otherwise, shall in writing
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.


 


Except as provided in Sections 2.06 and 2.07, a Global Security may not
be exchanged for another Security other than as provided in this Section
2.05(c); however, beneficial interests in a Global Security may be transferred
and exchanged as provided in Section 2.05(d) or (e). The provisions of this
Section 2.05(c) are subject to Section 2.11.


 


(d)                                 Transfer
and Exchange of Beneficial Interests in the Global Securities. The transfer
and exchange of beneficial interests in the Global Securities of a series shall
be effected through the Depositary, in accordance with the provisions of this
Indenture, any Board Resolution and any one or more indentures supplemental
hereto, and the Applicable Procedures. Beneficial interests in the Restricted
Global Securities of a series shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Securities also shall
require compliance with either subparagraph (1) or (2) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:


 


(1)                                  Transfer
of Beneficial Interests in the Same Global Security. Beneficial interests
in any Restricted Global Security of a series may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in the same
Restricted Global Security in accordance with the transfer restrictions set
forth in the Private Placement Legend. Beneficial interests in any Unrestricted
Global Security of a series may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Security
of such series. Subject to Section 2.05(e)(4), no written orders or
instructions shall be required to be delivered to the Security Registrar to
effect the transfers described in this Section 2.05(d)(1).


 


17
















 


(2)                                  All
Other Transfers and Exchanges of Beneficial Interests in Global Securities.
In connection with all transfers and exchanges of beneficial interests that are
not subject to Section 2.05(d)(1) above, the transferor of such beneficial
interest must deliver to the Security Registrar, as applicable, either:


 


(A)(1) an order from a Participant or an Indirect Participant given to
the Depositary in accordance with the relevant Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Security of such series in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given in
accordance with the relevant Applicable Procedures containing information
regarding the Participant account to be credited with such increase; or


 


(B)(1) an order from a Participant or an Indirect Participant given to
the Depositary in accordance with the relevant Applicable Procedures directing
the Depositary to cause to be issued a Definitive Security of such series in an
amount equal to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Security Registrar containing
information regarding the Person in whose name such Definitive Security shall
be registered to effect the transfer or exchange referred to in (B)(1) above;


 


provided that in no event shall Definitive
Securities of a series be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Security of such series prior to
(y) the expiration of the relevant Distribution Compliance Period and (z) the
receipt by the Security Registrar of any certificates identified by the Company
or its counsel to be required pursuant to Rule 903 and Rule 904 under the
Securities Act. Upon satisfaction of all the requirements for transfer and
exchange of beneficial interests in Global Securities of a series contained in
this Indenture, any Board Resolution, or one or more indentures supplemental
hereto and the Securities of such series or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Security or Securities of such series pursuant to Section 2.05(h).


 


(3)                                  Transfer
of Beneficial Interests to Another Restricted Global Security. A beneficial
interest in any Restricted Global Security of a series may be transferred to a
Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Security of the same series if the transfer complies
with the requirements of Section 2.05(d)(2) and the Security Registrar receives
a completed certificate in the form of Exhibit A.


 


(4)                                  Transfer
and Exchange of Beneficial Interests in a Restricted Global Security for
Beneficial Interests in an Unrestricted Global Security. A beneficial
interest in any Restricted Global Security of any series may be exchanged by
any holder thereof for a beneficial interest in an Unrestricted Global Security
of such series or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Security of such series
if the exchange or transfer complies with the requirements of Section
2.05(d)(2) above and the Security Registrar receives a completed certificate
from such holder in the form of Exhibit A or Exhibit B, as applicable, and an
opinion of 


 


18

















 


counsel in form, and from legal counsel,
reasonably acceptable to the Security Registrar and the Company to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.


 


If any such transfer is effected at a time when an Unrestricted Global
Security of such series has not yet been issued, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.04, the
Trustee shall authenticate one or more Unrestricted Global Securities of such
series in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests so transferred. Beneficial interests in an Unrestricted
Global Security of a series cannot be exchanged for, or transferred to Persons
who take delivery thereof in the form of, a beneficial interest in a Restricted
Global Security of such series.


 


(e)                                  Transfer
or Exchange of Beneficial Interests for Definitive Securities.


 


(1)                                  Beneficial
Interests in Restricted Global Securities to Restricted Definitive Securities.
If any holder of a beneficial interest in a Restricted Global Security of a
series proposes to exchange such beneficial interest for a Restricted
Definitive Security of such series or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive
Security of such series, then, upon receipt by the Security Registrar of a
completed certificate from such holder in the form of Exhibit A or Exhibit B, as
applicable, and certificates and opinions of counsel, if applicable, the
Trustee, upon receipt of written instructions accompanied by an Officer’s
Certificate, shall cause the aggregate principal amount of the applicable
Restricted Global Security of such series to be reduced accordingly pursuant to
Section 2.05(h), and the Company shall execute a Restricted Definitive Security
of such series in the appropriate principal amount, and Parent shall execute
the form of Guarantee thereon, and, upon receipt of an Authentication Order
pursuant to Section 2.04, the Trustee shall authenticate and deliver to the
Person designated in the instructions such Restricted Definitive Security. Any
Restricted Definitive Security of such series issued in exchange for a beneficial
interest in a Restricted Global Security of such series pursuant to this
Section 2.05(e) 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 Security Registrar through instructions from the
Depositary for such series and the Participant or Indirect Participant. The
Trustee shall deliver such Restricted Definitive Securities of such series to
the Persons in whose names such Securities are so registered. Any Restricted
Definitive Security of such series issued in exchange for a beneficial interest
in a Restricted Global Security of such series pursuant to this Section
2.05(e)(1) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.


 


(2)                                  Beneficial
Interests in Restricted Global Securities to Unrestricted Definitive Securities.
A holder of a beneficial interest in a Restricted Global Security of a series
may exchange such beneficial interest for an Unrestricted Definitive Security
of such series or may transfer such beneficial interest to a Person who takes
delivery thereof 


 


19

















 


in the form of an Unrestricted Definitive
Security of such series only if the Security Registrar receives a completed
certificate from such holder in the form of Exhibit A or Exhibit B, as
applicable, and an opinion of counsel in form, and from legal counsel,
reasonably acceptable to the Security Registrar and the Company to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.


 


(3)                                  Beneficial
Interests in Unrestricted Global Securities to Unrestricted Definitive
Securities. If any holder of a beneficial interest in an Unrestricted
Global Security of a series proposes to exchange such beneficial interest for
an Unrestricted Definitive Security of such series or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Security of such series, then, upon satisfaction of the
conditions set forth in Section 2.05(d)(2), the Trustee, upon receipt of
written instructions accompanied by an Officer’s Certificate, shall cause the
aggregate principal amount of the applicable Unrestricted Global Security of
such series to be reduced accordingly pursuant to Section 2.05(h), and the
Company shall execute an Unrestricted Definitive Security of such series in the
appropriate principal amount, and Parent shall execute the form of Guarantee
thereon, and, upon receipt of an Authentication Order in accordance with
Section 2.04, the Trustee shall authenticate and deliver to the Person
designated in the instructions such Unrestricted Definitive Security. Any
Unrestricted Definitive Security issued in exchange for a beneficial interest
pursuant to this Section 2.05(e)(3) 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 Security Registrar through instructions
from the Depositary for such series and the Participant or Indirect
Participant. The Trustee shall deliver such Unrestricted Definitive Securities
to the Persons in whose names such Securities are so registered. Any
Unrestricted Definitive Security issued in exchange for a beneficial interest
pursuant to this Section 2.05(e)(3) shall not bear the Private Placement
Legend.


 


(4)                                  Transfer
or Exchange of Regulation S Temporary Global Securities. Notwithstanding
the other provisions of this Section 2.05, a beneficial interest in the
Regulation S Temporary Global Security of a series may not be (A) exchanged for
a Definitive Security of such series prior to (y) the expiration of the
Distribution Compliance Period with respect to such series, unless such
exchange is effected by the Company, does not require an investment decision on
the part of the Holder thereof and does not violate the provisions of
Regulation S, and (z) the receipt by the Security Registrar of any certificates
identified by the Company or its counsel to be required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act or (B) transferred to a U.S. person
(as such term is defined in Regulation S) or for the account or benefit of a
U.S. person, other than an initial purchaser of such Regulation S Temporary
Global Security, or a Person who takes delivery thereof in the form of a Definitive
Security of such series prior to the events set forth in clause (A) above or
unless the transfer is pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or 904.


 


20

















 


(f)                                    Transfer
and Exchange of Definitive Securities for Beneficial Interests.


 


(1)                                  Restricted
Definitive Securities to Beneficial Interests in Restricted Global Securities.
If any Holder of a Restricted Definitive  Security
of a series proposes to exchange such Security for a beneficial interest in a
Restricted Global Security of such series or to transfer such Restricted
Definitive Securities of such series to a Person who takes delivery thereof in
the form of a beneficial interest in a Restricted Global Security of such
series, then, upon receipt by the Trustee of the following documentation:


 


(A) if the Holder of such Restricted Definitive Security of such series
proposes to exchange such Security for a beneficial interest in a Restricted
Global Security of such series, a completed certificate from such holder in the
form of Exhibit B; or


 


(B) if such Restricted Definitive Security is being transferred to a
QIB in accordance with Rule 144A under the Securities Act or to a non-U.S.
person in an offshore transaction in accordance with Rule 903 or 904 under the
Securities Act, a completed certificate to that effect set forth in Exhibit A,


 


the Trustee shall cancel the Restricted Definitive Security of such
series, increase or cause to be increased the aggregate principal amount of, in
the case of clause (A) above, the appropriate Restricted Global Security of
such series and, in the case of clause (B) above, the 144A Global Security of
such series or the Regulation S Global Security of such series as applicable.


 


(2)                                  Restricted
Definitive Securities to Beneficial Interests in Unrestricted Global Securities.
A Holder of a Restricted Definitive Security of a series may exchange such
Security for a beneficial interest in an Unrestricted Global Security of such
series or transfer such Restricted Definitive Security of such series to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security of such series only if the Security Registrar
receives a completed certificate from such Holder in the form of Exhibit A or
Exhibit B, as applicable, and an opinion of counsel in form, and from legal
counsel, reasonably acceptable to the Security Registrar and the Company to the
effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the Securities Act. Upon receipt of evidence of the satisfaction of the
conditions of any of the subparagraphs in this Section 2.05(f)(2), the Trustee
shall cancel the Restricted Definitive Securities of such series so transferred
or exchanged and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Security of such series.


 


(3)                                  Unrestricted
Definitive Securities to Beneficial Interests in Unrestricted Global Securities.
A Holder of an Unrestricted Definitive Security of a series may exchange such
Security for a beneficial interest in an Unrestricted Global Security of such
series or transfer such Definitive Securities of such series to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security of such series at any time. Upon receipt of a written request
for such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Security and increase or cause or be increased the
aggregate principal amount of one of the 


 


21

















 


Unrestricted Global Securities of such
series. If any such exchange or transfer from a Definitive Security of a series
to a beneficial interest is effected pursuant to subparagraphs (2) or (3) of
this Section 2.05(f) at a time when an Unrestricted Global Security of such
series has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.04, the Trustee shall
authenticate one or more Unrestricted Global Securities of such series in an
aggregate principal amount equal to the principal amount of Definitive
Securities of such series so transferred.


 


(g)                                 Transfer
and Exchange of Definitive Securities for Definitive Securities. Upon
written request by a Holder of Definitive Securities of a series and such
Holder’s compliance with the provisions of this Section 2.05(g), the Trustee
shall register the transfer or exchange of Definitive Securities of such series
pursuant to the provisions of Section 2.05(a). In addition to the requirements
set forth in Section 2.05(a), the requesting Holder shall provide any
additional certifications, documents, and information, as applicable, required
pursuant to the following provisions of this Section 2.05(g).


 


(1)                                  Restricted
Definitive Securities to Restricted Definitive Securities. Any Restricted
Definitive Security of a series may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted
Definitive Security of such series if the Trustee receives a completed certificate
in the form of Exhibit A, including the certifications, certificates and
opinions of counsel required by item (3) thereof, if applicable.


 


(2)                                  Restricted
Definitive Securities to Unrestricted Definitive Securities. Any Restricted
Definitive Security of a series may be exchanged by the Holder thereof for an Unrestricted Definitive Security of such
series or transferred to a Person or Persons who take delivery thereof in the
form of an Unrestricted Definitive Security of such series if the Security Registrar
receives a completed certificate from such Holder in the form of Exhibit A or
Exhibit B, as applicable and an opinion of counsel in form, and from legal
counsel, reasonably acceptable to the Company to the effect that such exchange
or transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


(3)                                  Unrestricted
Definitive Securities to Unrestricted Definitive Securities. A Holder of
Unrestricted Definitive Securities of a series may transfer such Securities to
a Person who takes delivery thereof in the form of an Unrestricted Definitive
Security of such series in accordance with Section 2.05(a). Upon receipt of a
request to register such a transfer, the Security Registrar shall register the
Unrestricted Definitive Securities of such series pursuant to the instructions
from the Holder thereof.


 


(h)                                 Cancellation
and/or Adjustment of Global Securities. At such time as all beneficial
interests in a particular Global Security of a series have been exchanged for
Definitive Securities of such series or a particular Global Security of a
series has been redeemed, repurchased or cancelled in whole and not in part,
each such Global Security of such series shall be returned to or retained and
cancelled by the Trustee in accordance with Section 2.08. At any 


 


22

















 


time prior to such cancellation, if any
beneficial interest in a Global Security of such series is exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Security of such series or for Definitive
Securities of such series, the principal amount of Securities of such series
represented by such Global Security shall be reduced accordingly and an
endorsement may be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee 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 Security of such series, such other Global Security shall be increased
accordingly and an endorsement may be made on such Global Security by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.


 


(i)                                     No
Exchange or Transfer. The Company shall not be required (i) to issue,
exchange or register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Securities of the same series and
ending at the close of business on the day of such mailing, (ii) to register
the transfer of or exchange any Securities of any series or portions thereof
called for redemption, or (iii) to register the transfer of or exchange a
Security of any series between the applicable record date pursuant to Section 2.01(a)(5) and the next succeeding Interest
Payment Date.


 


Section 2.06                                Temporary Securities.


 


Pending the preparation of definitive Securities of any series, the
Company may execute temporary Securities (printed, lithographed or typewritten)
of any authorized denomination, and Parent shall execute the Guarantees
thereon, and the Trustee, upon receipt of an Authentication Order, shall
authenticate and deliver such Securities. Such temporary Securities shall be
substantially in the form of the definitive Securities in lieu of which they
are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Every temporary Security of any series shall be executed by the Company, with the
form of Guarantee thereon executed by Parent, and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute, and if applicable Parent will endorse, and will
furnish definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor without
charge to the holders, at the office or agency of the Company maintained
pursuant to Section 4.02 for the purpose of exchanges of Securities of such
series, and the Trustee, upon receipt of an Authentication Order, shall
authenticate and such office or agency shall deliver in exchange for such temporary
Securities an equal aggregate principal amount of definitive Securities of such
series, unless the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice from the
Company. Until so exchanged, temporary Securities of any series shall in all
respects be valid obligations under this Indenture.


 


23

















 


Section 2.07                                Mutilated, Destroyed, Lost or Stolen Securities.


 


In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company, subject to the next succeeding
sentence, shall execute a new Security of the same series, bearing a number not
contemporaneously outstanding in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen, and Parent shall execute the form of Guarantee thereon, and upon the
Company’s written request the Trustee, subject to the next succeeding sentence,
upon receipt of an Authentication Order, shall authenticate and deliver such
Security. In every case the applicant for a substituted Security shall furnish
to the Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and the Trustee evidence
to their satisfaction of the destruction, loss or theft of the applicant’s
Security and of the ownership thereof. The Trustee, upon receipt of an
Authentication Order, shall authenticate any such substituted Security and
deliver the same. Upon the issuance of any substituted Security, the Company
may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses,
including the fees and expenses of the Trustee, connected therewith. In case
any Security that has matured or is about to mature shall become mutilated or
be destroyed, lost or stolen, the Company, instead of issuing a substitute
Security, may pay or authorize the payment of the same, without surrender
thereof except in the case of a mutilated Security, if the applicant for such
payment shall furnish to the Company and the Trustee such security or indemnity
as they may require to save them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.


 


Every
replacement Security issued pursuant to the provisions of this Section 2.07
shall constitute an additional contractual obligation of the Company whether or
not the mutilated, destroyed, lost or stolen Security shall be found at any
time, or be enforceable by anyone. All Securities shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude, to the extent lawful, any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.


 


Section 2.08                                Cancellation.


 


All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, if surrendered to the Company or any
paying agent, shall be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On written request of the Company at the time
of such surrender, the Trustee shall deliver to the Company evidence of the
cancellation of Securities by the Trustee. If the Company shall otherwise
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation.


 


24

















 


Section 2.09                                Third Party Beneficiaries.


 


Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto
and the holders of the Securities, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any covenant, condition
or provision contained herein.


 


Section 2.10                                Authenticating Agent.


 


So long as any of the Securities of any series remain Outstanding,
there may be an Authenticating Agent for any or all such series of Securities
which either the Trustee or the Company shall have the right to appoint. The
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series, including Securities issued upon
exchange, registration of transfer or partial redemption thereof, and
Securities so authenticated shall be valid obligations for all purposes as if
authenticated by the Trustee hereunder. All references in this Indenture to the
authentication of Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series. Each Authenticating
Agent shall be acceptable to the Company and shall be a corporation that has a
combined capital and surplus, as most recently reported or determined by it,
sufficient under the laws of any jurisdiction under which it is organized or in
which it is doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to
supervision or examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately. Any Authenticating Agent may resign at
any time by giving written notice of resignation to the Trustee and to the
Company. The Trustee with the Consent of the Company at any time may, and upon
request by the Company shall, terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating Agent and to the
Company. Upon resignation, termination or cessation of eligibility of any
Authenticating Agent, either the Trustee or the Company may appoint an eligible
successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.


 


Section 2.11                                Global Securities.


 


(a)                                  General.
If the Company shall establish pursuant to Section 2.01 that the Securities of
a particular series are to be issued as a Global Security, then the Company
shall execute one or more Global Securities that (i) shall represent, and shall
be denominated in an amount equal to the aggregate principal amount of, all of
the Outstanding Securities of such series, (ii) shall be registered in the name
of the Depositary or its nominee and (iii) shall be delivered to the Trustee as
custodian for the Depositary or otherwise delivered pursuant to the Depositary’s
instructions, and Parent shall execute the Guarantee or Guarantees thereon, and
the Trustee in accordance with Section 2.04 shall authenticate such Global
Security or Global Securities.


 


(b)                                 Euroclear
and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and the “Terms and Conditions Governing Use



 


25

















 


of Euroclear” and the “General Terms and Conditions” and “Customer
Handbook” of Clearstream, respectively, in effect at the relevant time shall be
applicable to transfers of beneficial interests in the Regulation S Global
Securities of such series that are held by Participants through Euroclear or
Clearstream.


 


Section 2.12                                CUSIP Numbers.


 


The Company in issuing the Securities of a series may use “CUSIP”
numbers if then generally in use, and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Securityholders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.


 


Section 2.13                                Securities Denominated in Foreign Currencies.


 


Except as otherwise specified pursuant to Section 2.01 for Securities
of any series, payment of the principal of, premium, if any, and interest on,
Securities of such series denominated in any Foreign Currency will be made in
such Foreign Currency.


 


In the event any Foreign Currency or Currencies in which any payment
with respect to any series of Securities may be made ceases to be a freely
convertible Currency on United States Currency markets, for any date thereafter
on which payment of principal of, premium, if any, or interest on the
Securities of a series is due, the Company shall select the Currency of payment
for use on such date, all as provided in the Securities of such series, in a
Board Resolution or in one or more indentures supplemental hereto. In such
event, the Company shall notify the Trustee of the Currency which it has
selected to constitute the funds necessary to meet the Company’s obligations on
such payment date and of the amount of such Currency to be paid. Such amount
shall be determined as provided in the Securities of such series, in a Board
Resolution or in one or more indentures supplemental hereto. The payment with
respect to such payment date shall be deposited with the Trustee by the Company
solely in the Currency so selected.


 


Section 2.14                                Wire Transfers.


 


Notwithstanding any other provision to the contrary in this Indenture,
the Company may make any payment required to be deposited with the Trustee or
any Paying Agent on account of principal of, premium, if any, or interest on,
the Securities by any method of wire transfer to an account designated in
writing by the Trustee or such Paying Agent such that funds are available on or
before the date such payment is to be made to the Holders of the Securities in
accordance with the terms hereof. If the Company is acting as its own Paying
Agent with respect to Securities of any series that are represented by one or
more Global Securities, the Company may make any such payment by wire transfer
to an account designated in writing by the Depositary for such Securities.


 


26
















 


Section 2.15           Designated Currency.


 


The Company may provide pursuant to Section 2.01
for Securities of any series that:


 


(a) the obligation, if any, of the
Company to pay the principal of, premium, if any, and interest on the
Securities of any series in a Foreign Currency or Dollars (the “Designated Currency”) as may be specified
pursuant to Section 2.01(a)(12) is of the essence and agree that,
to the fullest extent possible under applicable law, judgments in respect of
Securities of such series shall be given in the Designated Currency;


 


(b) the obligation of the Company to make payments in the
Designated Currency of the principal of, premium, if any, and interest on such
Securities shall be discharged, notwithstanding any payment in any other
Currency (whether pursuant to a judgment or otherwise), only to the extent of
the amount in the Designated Currency that the Securityholder receiving such
payment, in accordance with normal banking procedures, may purchase with the
amount paid in such other Currency after any premium and cost of exchange on
the business day in the country of issue of the Designated Currency or in the
international banking community immediately following the day on which such
Securityholder receives such payment;


 


(c) if the amount in the Designated Currency that may be so
purchased for any reason falls short of the amount originally due, the Company
shall pay such additional amounts as may be necessary to compensate for such
shortfall; and


 


(d) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.


 


Section 2.16           Form of Guarantee.


 


The form of Guarantee shall be set forth on
the applicable series of Securities substantially as follows:


 


GUARANTEE


 


For value received, Parent hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Security the
payment of principal of, premium, if any, and interest on, the Security upon
which this Guarantee is set forth in the amounts and at the time when due and
payable whether by declaration thereof, or otherwise, and interest on the
overdue principal and interest, if any, of such Security, if lawful, to the
holder of such Security and the Trustee on behalf of the Holders, all in
accordance with and subject to the terms and limitations of such Security and Article XV
of the Indenture.  This Guarantee will
not become effective until the Trustee or Authenticating Agent duly executes
the certificate of authentication on this Security.  This Guarantee shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of law principles thereof.


 


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  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  TYCO INTERNATIONAL LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


ARTICLE III.


 


REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS


 


Section 3.01           Redemption.


 


The Company may redeem the Securities of any
series issued hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01 or 14.01.


 


Section 3.02           Notice of Redemption.


 


(a)           If
the Company desires to exercise such right to redeem all or, as the case may
be, a portion of the Securities of any series, the Company shall, or shall
instruct the Trustee in writing to, give notice of such redemption to holders
of the Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than 90
days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register, unless a
shorter period is specified in the Securities to be redeemed. Any notice that is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the registered holder receives the notice. In
any case, failure duly to give such notice to the holder of any Security of any
series designated for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for the redemption of
any other Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer’s Certificate
evidencing compliance with any such restriction.


 


Each such notice of redemption shall specify
the date fixed for redemption and the redemption price at which Securities of
that series are to be redeemed, and shall state that:  (i) payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the
Company maintained for such purpose, or, if none, at the Corporate Trust Office
of the Trustee, upon presentation and surrender of such Securities; (ii) interest
accrued to the date fixed for redemption will be paid as specified in said
notice; (iii) from and after said date interest will cease to accrue; and (iv) the
redemption is for a sinking fund, if such is the case. If less than all the
Securities of a series are to be redeemed, the notice to the holders of
Securities of that series to be redeemed in whole or in part shall specify the
particular Securities to be so redeemed. In case any Security is to be redeemed
in part only, the notice that relates to such Security shall state the portion
of the principal amount thereof to be redeemed, and shall state 


 


28

















 


that on and after the redemption date, upon surrender of such Security,
a new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.


 


(b)           If
all or less than all the Securities of a series are to be redeemed, the Company
shall give the Trustee at least 45 days’ written notice, unless a shorter
period shall be satisfactory to the Trustee, in advance of the date fixed for
redemption as to the aggregate principal amount of Securities of the series to
be redeemed.  If less than all the
Securities are to be redeemed, the Trustee thereupon shall select from
Securities of such series Outstanding not previously called for redemption, in
accordance with a method that complies with the requirements, if any, of any stock exchange
on which Securities are listed and that the Trustee considers fair and
appropriate, which may include selection pro rata or by lot, and that may
provide for the selection of a portion or portions equal to $1,000 or any
integral multiple thereof of the principal amount of such Securities of such
series of a denomination larger than $1,000, the Securities of such series to
be redeemed.  The Trustee promptly shall
notify the Company in writing of the numbers of the Securities of such series
to be redeemed, in whole or in part.


 


The Company, if and whenever it shall so
elect, by delivery of an Officer’s Certificate, may instruct the Trustee or any
paying agent to call all or any part of the Securities of a particular series
for redemption and to give notice of redemption in the manner set forth in this
Section 3.02, such notice to be in the name of the Company or its own
name, as the Trustee or such paying agent may deem advisable. In any case in
which notice of redemption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to, or permit to
remain with, the Trustee or such paying agent, as the case may be, such
Security Register, transfer books or other records, or suitable copies or
extracts therefrom, sufficient to enable the Trustee or such paying agent to
give any notice by mail that may be required under the provisions of this Section 3.02.


 


Section 3.03           Payment Upon Redemption.


 


(a)           If
the giving of notice of redemption shall have been completed as above provided,
the Securities or portions of Securities of the series to be redeemed specified
in such notice shall become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, in each case as established pursuant
to Section 2.01 or 14.01.  Interest
on such Securities or portions of Securities shall cease to accrue on and after
the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security
or portion thereof. On presentation and surrender of such Securities on or
after the date fixed for redemption at the place of payment specified in the
notice, such Securities shall be paid and redeemed at the applicable redemption
price for such series, together with interest accrued thereon to the date fixed
for redemption (but if the date fixed for redemption is an Interest Payment
Date, the interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record date
pursuant to Section 2.01).


 


(b)           Upon
presentation of any Security of such series that is to be redeemed in part
only, the Company shall execute a new Security of the same series and tenor of
authorized denominations in principal amount equal to the unredeemed portion of
the Security so presented, 


 


29

















 


and Parent shall execute the form of Guarantee thereon, and the
Trustee, upon receipt of an Authentication Order, shall authenticate, and the
office or agency where the Security is presented shall deliver to the holder
thereof, at the expense of the Company, such new Security; except that if a
Global Security is so surrendered, the Company shall execute a new Global
Security of like tenor in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered, and
Parent shall execute the form of Guarantee thereon, and, upon receipt of an
Officer’s Certificate requesting authentication and delivery, the Trustee, upon
receipt of an Authentication Order, shall authenticate and deliver to the
Depositary for such Global Security, without service charge, such new Global
Security.


 


Section 3.04           Sinking Fund.


 


The provisions of Sections 3.04, 3.05 and
3.06 shall be applicable to any sinking fund for the retirement of Securities
of a series, except as otherwise specified as contemplated by Section 2.01
for Securities of such series.


 


The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is referred to as
a “mandatory sinking fund payment,” and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is referred to as
an “optional sinking fund payment.” If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 3.05. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.


 


Section 3.05           Satisfaction of Sinking Fund
Payments with Securities.


 


The Company (i) may deliver Outstanding
Securities of a series other than any Securities previously called for
redemption and (ii) may apply as a credit Securities of a series that have
been redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities,
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.


 


Section 3.06           Redemption of Securities for
Sinking Fund.


 


Not less than 30 days prior to each sinking
fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officer’s Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of the series, the
portion thereof, if any, that is to be satisfied by payment of cash in the
Currency in which the Securities of such series are denominated (except as
provided pursuant to Section 2.01), the portion thereof, if any, that is
to be satisfied by delivering and crediting Securities of that series pursuant
to Section 3.05 and the basis for such credit.  Together with such Officer’s Certificate, the
Company will deliver to the Trustee any Securities to be so delivered. Not less
than 30 days 


 


30

















 


before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 3.02. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in Section 3.03.


 


ARTICLE IV.


 


CERTAIN COVENANTS


 


The following covenants shall apply to the
Securities, except with respect to any series of Securities for which the
supplemental indenture or resolution of the Board of Directors under which such
series of Securities is issued or the form of Security for such series
expressly provides that any such covenant shall not apply to such series of
Securities:


 


Section 4.01           Payment of Principal, Premium and
Interest.


 


The Company will duly and punctually pay or
cause to be paid the principal of, premium, if any, and interest on the
Securities of a series at the time and place and in the manner provided herein
and established with respect to such Securities.


 


Section 4.02           Maintenance of Office or Agency.


 


So long as any series of the Securities
remain Outstanding, the Company will maintain for such series an office or
agency where Securities of such series may be presented or surrendered for
payment, where Securities of such series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such series and this Indenture may be given or
served.  Such designation will continue
with respect to each office or agency until the Company, by written notice
signed by any Officer and delivered to the Trustee, shall designate some other
office or agency for such purposes or any of them.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands. 
Unless otherwise specified in accordance with Section 2.01 with
respect to a series of Securities, the Company initially designates the
Corporate Trust Office of Deutsche Bank Trust Company Americas, 60 Wall Street,
27th Floor, MSNYC6-2710, New York, New York 10005, acting as the Company’s
agent, as the office to be maintained by it for each such purpose.


 


Section 4.03           Paying Agents.


 


(a)           The
Company, upon written notice to the Trustee accompanied by an Officer’s
Certificate, may appoint one or more paying agents, other than the Trustee, for
all or any series of the Securities. If the Company fails to appoint or
maintain another entity as paying agent, the Trustee shall act as such. Parent,
the Company or any of their Subsidiaries, upon notice to the Trustee, may act
as paying agent.


 


31

















 


(b)           The
Company shall require each paying agent, other than Parent, the Company and the
Trustee, to agree in writing with the Company, and the Company shall deliver a
copy of such agreement to the Trustee, that the paying agent will hold in trust
for the benefit of Securityholders or the Trustee all funds held by the paying
agent for the payment of principal, premium, if any, or interest on the
Securities, and will promptly notify the Trustee in writing of any default by
the Company in making any such payment. 
While any such default continues, the Trustee may require a paying agent
to pay all funds held by it to the Trustee. 
The Company at any time may require a paying agent to pay all funds held
by it to the Trustee.  Upon payment over
to the Trustee, the paying agent, if other than Parent or the Company, shall
have no further liability for the funds. If Parent or the Company acts as
paying agent, it shall segregate and hold in a separate trust fund for the
benefit of the Securityholders all funds held by it as paying agent.


 


(c)           Notwithstanding
anything in this Section 4.03 to the contrary, (i) the agreement to
hold funds in trust as provided in this Section 4.03 is subject to the
provisions of Section 11.06, and (ii) the Company at any time, for
the purpose of obtaining the satisfaction and discharge or defeasance of this
Indenture or for any other purpose, may 
pay, or direct any paying agent to pay, to the Trustee all funds held in
trust by the Company or such paying agent, such funds to be held by the Trustee
upon the same terms and conditions as those upon which such funds were held by
the Company or such paying agent.  Upon
such payment by any paying agent to the Trustee, such paying agent shall be released
from all further liability with respect to such funds.


 


Section 4.04           Statement by Officers as to
Default.


 


So long as any of the Securities remain
outstanding, the Company and Parent will furnish to the Trustee on or before March 31
in each year a certificate, which need not comply with Section 13.06,
executed by the principal executive, financial or accounting officer of each of
the Company and Parent on their respective behalf as to his or her knowledge of
the Company’s or Parent’s, as the case may be, compliance with all covenants
and agreements under this Indenture required to be complied with by the Company
and Parent, respectively (such compliance to be determined without regard to
any period of grace or requirement of notice provided under this
Indenture).  Such certificate need not
include a reference to any non-compliance that has been fully cured prior to
the date as of which such certificate speaks.


 


The Company shall provide written notice to
the Trustee within 30 days of the occurrence of any Event of Default under Section 6.01.


 


Section 4.05           Appointment to Fill Vacancy in
Office of Trustee.


 


The Company, whenever necessary to avoid or
to fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 7.10, a Trustee, so that there shall be at all times a
Trustee hereunder.


 


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ARTICLE V.


 


SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND

THE TRUSTEE


 


Section 5.01           Company to Furnish Trustee Names
and Addresses of Securityholders.


 


The Company will furnish or cause to be
furnished to the Trustee (a) semi-annually at least seven Business Days
before each Interest Payment Date for a series of Securities (and in all events
at intervals of not more than six months) a list, in such form as the Trustee
may reasonably require, of the names and addresses of the holders of each
series of Securities as of such date, provided that the Company shall not be
obligated to furnish or cause to furnish such list at any time that the list
shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee may
require in writing within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished; provided, however, that, in either
case, no such list need be furnished for any series for which the Trustee shall
be the Security Registrar.


 


Section 5.02           Preservation of Information;
Communications with Securityholders.


 


(a)           The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Securities
contained in the most recent list furnished to it as provided in Section 5.01
and as to the names and addresses of holders of Securities received by the
Trustee in its capacity as Security Registrar (if acting in such capacity).


 


(b)           Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture
Act with other Securityholders with respect to their rights under this
Indenture or under the Securities.  Each
Securityholder, by receiving and holding a Security, agrees with Parent, the
Company and the Trustee that none of Parent, the Company or the Trustee or any
agent of any of them shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders in accordance
with this Section 5.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under this Section 5.02(b).


 


Section 5.03           Reports by the Company.


 


(a)           So
long as any Securities are outstanding, the Company shall file with the
Trustee, within 15 days after Parent files with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) that Parent may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act.  The Company shall be
deemed to have complied with the previous sentence to the extent that such
information, documents and reports are filed with the Commission via EDGAR (or
any successor electronic delivery procedure).


 


33

















 


(b)           Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates).


 


Section 5.04           Reports by the Trustee.


 


(a)           Any
Trustee’s report required under Section 313(a) of the Trust Indenture
Act shall be transmitted on or before July 15 in each year following the
date hereof, so long as any Securities are outstanding hereunder, and shall be
dated as of a date convenient to the Trustee no more than 60 nor less than 45
days prior thereto.


 


(b)           The
Trustee shall comply with Section 313(b) and Section 313(c) of
the Trust Indenture Act.


 


(c)           A
copy of each Trustee’s report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with any stock
exchange upon which any Securities are listed and with the Commission. The
Company agrees to notify the Trustee when any Securities become listed on any
stock exchange or delisted therefrom.


 


ARTICLE VI.


 


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON

EVENT OF DEFAULT


 


Section 6.01           Events of Default.


 


(a)           Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of
the following events that has occurred and is continuing, except with respect
to any series of Securities for which the supplemental indenture or resolution
of the Board of Directors under which such series of Securities is issued or
the form of Security for such series expressly provides that any such Event of
Default shall not apply to such series of Securities:


 


(1)           default
in the payment of any installment of interest upon any of the Securities of
such series as and when the same shall become due and payable, and continuance
of such default for a period of 30 days; or


 


(2)           default
in the payment of all or any part of the principal of or premium, if any, on
any of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or


 


(3)           default
in the payment of any sinking fund installment as and when the same shall
become due and payable by the terms of the Securities of such series; or


 


(4)           default
in the performance, or breach, of any covenant or agreement of Parent or the
Company in respect of the Securities of such series and the related 


 


34

















 


Guarantee (other than  a default or breach that is specifically
dealt with elsewhere in this Section 6.01), and continuance of such
default or breach for a period of 90 days after the date on which there has
been given, by registered or certified mail, to Parent and the Company by the
Trustee or to Parent, the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or


 


(5)           the
Guarantee with respect to the Securities of such series shall for any reason
cease to be, or shall for any reason be asserted in writing by Parent or the
Company not to be, in full force and effect and enforceable in accordance with
its terms except to the extent contemplated by this Indenture and such
Guarantee; or


 


(6)           a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company or Parent in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator or similar official of the Company or Parent or for any
substantial part of its property or ordering the winding up or liquidation of
its affairs, and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or


 


(7)           the
Company or Parent shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator or similar official of
the Company or Parent or for any substantial part of its property, or make any
general assignment for the benefit of creditors; or


 


(8)           any
other Event of Default provided in the supplemental indenture or resolution of
the Board of Directors under which such series of Securities is issued or in
the form of Security for such series.


 


(b)           If an Event of
Default shall have occurred and be continuing in respect of the Securities of a
series, in each and every such case, unless the principal of all the Securities
of that series shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by notice in writing to
Parent and the Company, and to the Trustee if given by such Securityholders,
may declare the unpaid principal of all the Securities of that series to be due
and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, notwithstanding anything contained in
this Indenture or in the Securities of that series or established with respect
to that series pursuant to Section 2.01 to the contrary.


 


(c)           The Trustee shall
give to the Securityholders of any series, as the names and addresses of such
Holders appear on the Security Register, notice by mail of all defaults known
to the Trustee that have occurred with respect to such series, such notice to
be transmitted within 


 


35

















 


90
days after the occurrence thereof, unless such defaults shall have been cured
before the giving of such notice (the term “default” or “defaults” for the
purposes of this Section 6.01(c) being hereby defined to mean any
event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default in
the payment of the principal of, premium, if any, or interest on any of the
Securities of such series, or in the payment of any sinking or purchase fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees and/or
Responsible Officers in good faith determines that the withholding of such
notice is in the interests of the Securityholders of such series.


 


Section 6.02           Collection of Indebtedness and
Suits for Enforcement by Trustee.


 


(a)           The
Company covenants that (i) in case it shall default in the payment of any
installment of interest on any of the Securities of a series, or any payment
required by any sinking or analogous fund established with respect to that
series as and when the same shall have become due and payable, and such default
shall have continued for a period of 30 days, or (ii) in case it shall
default in the payment of the principal of, or premium, if any, on any of the
Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Company will
pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on
all such Securities for principal, premium, if any, or interest, or both, with
interest upon the overdue principal, premium, if any, and, to the extent that
payment of such interest is enforceable under applicable law, upon overdue
installments of interest at the rate expressed in the Securities of that
series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount payable to the
Trustee under Section 7.06.


 


(b)           If
the Company shall fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for
the collection of the amounts so due and unpaid, and may prosecute any such
action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or Parent 
and collect the amounts adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or Parent, wherever
situated.


 


(c)           In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affecting the
Company or Parent or its respective creditors or property, the Trustee shall
have power to intervene in such proceedings and take any action therein that
may be permitted by the court and, except as otherwise provided by law, shall
be entitled to file such proofs of claim and other papers and documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and
payable by the Company under this Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by
the Company after such date, and to collect and receive any funds or other
property payable or deliverable on any such claim, and to distribute the same
in accordance with Section 6.03. 
Any receiver, assignee or trustee in 


 


36

















 


bankruptcy or reorganization is hereby authorized by each of the
holders of Securities of such series to make such payments to the Trustee, and,
in the event that the Trustee shall consent to the making of such payments
directly to such Securityholders, to pay to the Trustee any amount due it under
Section 7.06.


 


(d)           All
rights of action and of asserting claims under this Indenture, or under any of
the terms established with respect to Securities of that series, may be
enforced by the Trustee without the possession of any of such Securities, or
the production thereof at any trial or other proceeding relative thereto.  Any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for payment to the Trustee of
any amounts due under Section 7.06, be for the ratable benefit of the
holders of the Securities of such series.


 


In case of an Event of Default, the Trustee
in its discretion or in accordance with the direction of the holders of a
majority in aggregate principal amount of the Securities of any series at the
time Outstanding may proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or
in equity or in bankruptcy or otherwise, whether for the specific enforcement
of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.


 


Nothing contained herein shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.


 


Section 6.03           Application of Funds Collected.


 


Any funds collected by the Trustee pursuant
to this Article VI with respect to a particular series of Securities shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such funds on account of principal,
premium, if any, or interest, upon presentation of the Securities of that
series, and notation thereon of the payment, if only partially paid, and upon
surrender thereof if fully paid:


 


FIRST: To the payment of costs and expenses
of collection and of all amounts payable to the Trustee under Section 7.06;


 


SECOND: To the payment of the amounts then
due and unpaid upon Securities of such series for principal, premium, if any,
and interest, in respect of which or for the benefit of which such funds have
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal, premium, if
any, and interest, respectively; and


 


THIRD: To the Company.


 


37
















 


Section 6.04           Limitation on Suits.


 


No holder of any Security of any series shall
have any right by virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series specifying
such Event of Default; (ii) the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such holder or
holders shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby; (iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any such action,
suit or proceeding; and (v) during such 60 day period, the holders of a
majority in principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.


 


Notwithstanding anything contained herein to
the contrary, any other provisions of this Indenture, the right of any holder
of any Security to receive payment of the principal of, and premium, if any,
and interest on such Security, as therein provided, on or after the respective
due dates expressed in such Security or, in the case of redemption, on the
redemption date, or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder. 
By accepting a Security hereunder it is expressly understood, intended
and covenanted by the taker and holder of every Security of such series with
every other such taker and holder and the Trustee, that no one or more holders
of Securities of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to
obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders of
Securities of such series. For the protection and enforcement of the provisions
of this Section 6.04, each Securityholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.


 


Section 6.05           Rights and Remedies Cumulative;
Delay or Omission not Waiver.


 


(a)           Except
as otherwise provided in Section 2.07, all powers and remedies given by
this Article VI to the Trustee or to the Securityholders, to the extent
permitted by law, shall be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.


 


(b)           No
delay or omission of the Trustee or of any holder of any of the Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein.  Subject to the provisions of Section 6.04,
every power and remedy given 


 


38

















 


by this Article VI or by law to the Trustee or the Securityholders
may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.


 


Section 6.06           Control by Securityholders.


 


(a)           The
holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding, determined in accordance with Section 8.04,
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to such series; provided, however,
that such direction shall not be in conflict with any rule of law or with
this Indenture or be unduly prejudicial to the rights of holders of Securities
of any other series at the time Outstanding determined in accordance with Section 8.04.
Subject to the provisions of Section 7.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith, by
a Responsible Officer or Responsible Officers of the Trustee, shall determine
that the proceeding so directed would involve the Trustee in personal
liability.


 


(b)           In
the case of an Event of Default with respect to a series of Securities, at any
time before the principal of the Securities of that series shall have been
declared due and payable, the holders of a majority in aggregate principal
amount of the Securities of such series at the time Outstanding, determined in
accordance with Section 8.04, on behalf of the holders of all of the
Securities of such series, by written notice to Parent and the Company
and the Trustee, may waive any existing default in the performance of
any of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except a default in the
payment of the principal of, premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due by the terms of
such Securities.  Upon any such waiver,
the default covered thereby and any Event of Default arising therefrom shall be
deemed to be cured for all purposes of this Indenture and the Company, the
Trustee and the holders of the Securities of such series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.


 


(c)           At any time after
the principal of the Securities of that series shall have been declared due and
payable, and before any judgment or decree for the payment of the amount due
shall have been obtained or entered as hereinafter provided, the holders of a
majority in aggregate principal amount of the Securities of that series at the
time Outstanding hereunder, by written notice to Parent and the Company and the
Trustee, may rescind and annul such declaration and its consequences if: (i) the
Company has or has caused to be paid or deposited with the Trustee an amount
sufficient to pay all matured installments of interest upon all the Securities
of that series and the principal of and premium, if any, on any and all
Securities of that series that shall have become due otherwise than by
acceleration, with interest upon such principal and premium, if any, and, to
the extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate expressed in the Securities of that
series to the date of such payment or deposit, and (ii) any and all Events
of Default under this Indenture with respect to such series, except
non-payment of the principal of, premium, if any, or interest on, any of the
Securities of that series as a result of such declaration, shall have been remedied or waived. No such
rescission and annulment shall extend to or shall affect any subsequent default
or impair any right consequent thereon.


 


39

















 


(d)           In case the Trustee
shall have proceeded to enforce any right with respect to Securities of that
series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had been
taken.


 


Section 6.07           Undertaking to Pay Costs.


 


All parties to this Indenture agree, and each
holder of any Securities by such holder’s acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 6.07 shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding more than 10% in aggregate
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of, premium, if any, or interest on any Security of such series, on
or after the respective due dates expressed in such Security or established
pursuant to this Indenture.


 


Section 6.08           Waiver Of Usury, Stay Or Extension
Laws.


 


Each of Parent and the Company covenants, to
the extent that it may lawfully do so, that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and each of Parent and the Company, to the extent that it may
lawfully do so, hereby expressly waives all benefit or advantage of any such
law and covenants that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


ARTICLE VII.


 


CONCERNING THE TRUSTEE


 


Section 7.01           Certain Duties and
Responsibilities of Trustee.


 


(a)           In
case an Event of Default with respect to the Securities of a series has
occurred (that has not been cured or waived), the Trustee shall exercise with
respect to Securities of that series such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.


 


40

















 


(b)           No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:


 


(1)           prior to the occurrence of an Event
of Default with respect to the Securities of a series and after the curing or
waiving of all such Events of Default with respect to that series that may have
occurred:


 


(i)        the duties and obligations of the
Trustee shall with respect to the Securities of such series be determined
solely by the express provisions of this Indenture, and the Trustee shall not
be liable with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and


 


(ii)       in the absence of bad faith on the part
of the Trustee, the Trustee with respect to the Securities of such series may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical computations or other facts, statements and opinions
stated therein);


 


(2)           the Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;


 


(3)           the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a majority in
principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture with respect to the Securities of that
series; and


 


(4)           none of the provisions contained in
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it.


 


Section 7.02           Certain Rights of Trustee.


 


Except as otherwise provided in Section 7.01:


 


41

















 


(a)           The
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security or
other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper
party or parties.


 


(b)           Any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument signed in the
name of the Company by an Officer (unless other evidence in respect thereof is
specifically prescribed herein).


 


(c)           The
Trustee may consult with counsel of its own selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted hereunder in
good faith and in reliance thereon.


 


(d)           The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred therein or
thereby.


 


(e)           The
Trustee shall not be liable for any action taken or omitted to be taken by it
in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.


 


(f)            The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, security or other papers or
documents, but the Trustee, in its discretion, may make such further inquiry
into such matters as it may see fit, and if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.


 


(g)           The
Trustee shall not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee.


 


(h)           The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.


 


(i)            The
rights, privileges, protections and immunities given to the Trustee, including
its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.


 


42

















 


(j)            The
Trustee may request that the Company deliver an Officer’s Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture, which Officer’s
Certificate may be signed by any person authorized to sign an Officer’s
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.


 


Section 7.03           Trustee not Responsible for
Recitals or Issuance of Securities.


 


(a)           The
recitals contained herein and in the Securities shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.


 


(b)           The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities.


 


(c)           The
Trustee shall not be accountable for the use or application by the Company of
any of the Securities or of the proceeds of such Securities, or for the use or
application of any funds paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section 2.01, or
for the use or application of any funds received by any paying agent other than
the Trustee.


 


Section 7.04           May Hold Securities.


 


The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar. However, the Trustee is subject to
Sections 7.08 and 7.13.


 


Section 7.05           Funds Held in Trust.


 


Subject to the provisions of Section 11.06,
all funds received by the Trustee, until used or applied as herein provided,
shall be held in trust for the purposes for which they were received, but need
not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any funds received by it
hereunder except such as it may agree with the Company to pay thereon.


 


Section 7.06           Compensation and Reimbursement.


 


(a)           The
Company shall pay to the Trustee, and the Trustee shall be entitled to be paid,
such compensation, which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust, as the Company and the
Trustee from time to time may agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee.  Except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses and disbursements incurred or made by the Trustee in
accordance with any of the provisions of this Indenture, including the
reasonable compensation and the expenses and disbursements of its counsel and
of all Persons not regularly in its employ, except any such expense or
disbursement as may arise from its own negligence or bad faith. The Company and
Parent shall indemnify the Trustee (and its officers, agents, 


 


43

















 


directors and employees) for, and shall hold it harmless against, any
and all loss, liability, claim, damage or expense, including taxes, other than
taxes based upon, measured by or determined by the income of the Trustee,
reasonably incurred by the Trustee without negligence or bad faith on its part
and arising out of or in connection with the acceptance or administration or
enforcement of this trust, including the reasonable costs and expenses of
defending itself against any claim of liability whether asserted by the
Company, any Holder or any other Person.


 


(b)           The
obligations of the Company under this Section 7.06 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses and
disbursements shall: (i) be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Securities; and (ii) survive the termination of this Indenture and
resignation or removal of the Trustee.


 


(c)           Where
the Trustee incurs expenses or renders services in connection with a bankruptcy
event of default, such costs and expenses (including reasonable attorneys’ fees
and expenses) and the compensation for the services are intended to constitute
expenses of administration under applicable Federal or state, bankruptcy,
insolvency or other law.


 


Section 7.07           Reliance on Officer’s Certificate.


 


Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting to take any action hereunder, such
matter, unless other evidence in respect thereof be herein specifically
prescribed, in the absence of negligence or bad faith on the part of the
Trustee, may be deemed to be conclusively proved and established by an Officer’s
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted to be taken by it under
the provisions of this Indenture upon the faith thereof.


 


Section 7.08           Disqualification; Conflicting
Interests.


 


If the Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture
Act, the Trustee and the Company shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.


 


Section 7.09           Corporate Trustee Required;
Eligibility.


 


There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all times be a
corporation organized and doing business under the laws of the United States or
any State or Territory thereof or of the District of Columbia, or a corporation
or other Person permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $100,000,000, and subject to supervision or examination by
Federal, State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 7.09 the combined capital and
surplus of such corporation shall be deemed to be its 


 


44

















 


combined capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any Affiliate of the
Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 7.09, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 7.10.


 


Section 7.10           Resignation and Removal;
Appointment of Successor.


 


(a)           The
Trustee or any successor hereafter appointed may resign at any time with
respect to the Securities of one or more series by giving written notice
thereof to the Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Securityholders of such series, as their names
and addresses appear upon the Security Register.  Upon receiving such notice of resignation,
the Company promptly shall appoint a successor trustee with respect to Securities
of such series. If no successor trustee shall have been so appointed and have
accepted appointment within 60 days after the retiring Trustee resigns, the
retiring Trustee, at the expense of the Company, or the Company may petition
any court of competent jurisdiction for the appointment of a successor trustee
with respect to Securities of such series, or any Securityholder of that series
who has been a bona fide holder of a Security or Securities for at least six
months may on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.


 


(b)           In
case at any time any one of the following shall occur, the Company may remove
the Trustee with respect to all or any series of Securities and appoint a
successor trustee, or, unless the Trustee’s duty to resign is stayed as
provided herein, any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months, on behalf of that holder and
all others similarly situated, may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee:


 


(1)           the Trustee shall fail to comply with
the provisions of Section 7.08 after written request therefor by the
Company or by any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months; or


 


(2)           the Trustee shall cease to be
eligible in accordance with the provisions of Section 7.09 and shall fail
to resign after written request therefor by the Company or by any such
Securityholder; or


 


(3)           the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary
bankruptcy proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation.


 


Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition, at the expense of
the Company, any court of 


 


45

















 


competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.


 


(c)           The
holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding at any time may remove the Trustee with respect
to such series by so notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the consent of the Company.


 


(d)           Any
resignation or removal of the Trustee and appointment of a successor trustee
with respect to the Securities of a series pursuant to any of the provisions of
this Section 7.10 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 7.11.


 


(e)           Any
successor trustee appointed pursuant to this Section 7.10 may be appointed
with respect to the Securities of one or more series or all of such series, and
at any time there shall be only one Trustee with respect to the Securities of
any particular series.


 


Section 7.11           Acceptance of Appointment By
Successor.


 


(a)           In
case of the appointment hereunder of a successor trustee with respect to all
Securities, every such successor trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee.  On the request of the Company or the
successor trustee, such retiring Trustee, upon payment of its charges, shall
execute and deliver an instrument transferring to such successor trustee all
the rights, powers, and trusts of the retiring Trustee and shall assign,
transfer and deliver to such successor trustee all property and funds held by
such retiring Trustee hereunder.


 


(b)           In
case of the appointment hereunder of a successor trustee with respect to the
Securities of one or more but not all series, the Company, the retiring Trustee
and each successor trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein each
successor trustee shall accept such appointment and which:  (i) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in,
each successor trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; (ii) shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee;
and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder.  Upon the execution and 


 


46

















 


delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein, and
such retiring Trustee shall have no further responsibility with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates for the exercise of rights and powers or for the performance of
the duties and obligations vested in the Trustee under this Indenture.  Each such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates.  On request of the
Company or any successor trustee, such retiring Trustee shall assign, transfer
and deliver to such successor trustee, to the extent contemplated by such
supplemental indenture, the property and funds held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor trustee relates.


 


(c)           Upon
request of any such successor trustee, the Company may execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights, powers and trusts referred to in Section 7.11(a) or
(b), as the case may be.


 


(d)           No
successor trustee shall accept its appointment unless at the time of such
acceptance such successor trustee shall be qualified and eligible under this Article VII.


 


(e)           Upon
acceptance of appointment by a successor trustee as provided in this Section 7.11,
the successor trustee shall cause a notice of its succession to be transmitted
to Securityholders.


 


Section 7.12           Merger, Conversion, Consolidation
or Succession to Business.


 


Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided that such corporation shall be qualified under the
provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.


 


Section 7.13           Preferential Collection of Claims
Against the Company.


 


The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall
continue to be subject to Section 311(a) of the Trust Indenture Act.


 


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ARTICLE VIII.


 


CONCERNING THE SECURITYHOLDERS


 


Section 8.01           Evidence of Action by
Securityholders.


 


Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate principal
amount of the Securities of a particular series may take any action (including
the making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action), the fact that at the time of taking
any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Securities of that
series in Person or by agent or proxy appointed in writing.


 


If the Company shall solicit from the
Securityholders of any series any request, demand, authorization, direction,
notice, consent, waiver or other action, the Company, at its option, as evidenced
by an Officer’s Certificate, may fix in advance a record date for such series
for the determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of that
series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the
Outstanding Securities of that series shall be computed as of the record date;
provided, however, that no such authorization, agreement or consent by such
Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
six months after the record date.


 


Section 8.02           Proof of Execution by
Securityholders.


 


Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will
not require notarization) or his agent or proxy and proof of the holding by any
Person of any of the Securities shall be sufficient if made in the following
manner:


 


(a)           The
fact and date of the execution by any such Person of any instrument may be
proved in any reasonable manner acceptable to the Trustee.


 


(b)           The
ownership of Securities shall be proved by the Security Register of such
Securities or by a certificate of the Security Registrar thereof.


 


(c)           The
Trustee may require such additional proof of any matter referred to in this Section 8.02
as it shall deem necessary.


 


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Section 8.03           Who
May be Deemed Owners.


 


Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any
Security Registrar may deem and treat the Person in whose name such Security
shall be registered upon the books of the Company as the absolute owner of such
Security, whether or not such Security shall be overdue and notwithstanding any
notice of ownership or writing thereon made by anyone other than the Security
Registrar, for the purpose of receiving payment of or on account of the
principal of, premium, if any, and (subject to Section 2.03) interest on
such Security and for all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Security Registrar shall be affected by
any notice to the contrary.


 


None of the Company, the Trustee, any paying
agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial interests.


 


Section 8.04           Certain
Securities Owned by Company Disregarded.


 


In determining whether the holders of the
requisite aggregate principal amount of Securities of a particular series have
concurred in any direction, consent of waiver under this Indenture, the
Securities of that series that are owned by Parent, the Company or any other
obligor on the Securities of that series or by an Affiliate of Parent or the
Company shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities of such series that a Responsible Officer of the
Trustee knows are so owned shall be so disregarded. The Securities so owned
that have been pledged in good faith may be regarded as Outstanding for the
purposes of this Section 8.04, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not an Affiliate. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.  Upon
request of the Trustee, the Company shall furnish to the Trustee promptly an
Officer’s Certificate listing and identifying all Securities of a particular
series, if any known by Parent or the Company to be owned or held by or for the
account of any of the above described Persons and, subject to Sections 7.01 and
7.02, the Trustee shall be entitled to accept such Officer’s Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities of such particular series not listed therein are Outstanding for the
purpose of any such determination.


 


Section 8.05           Actions
Binding on Future Securityholders.


 


At any time prior to the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the
evidence to be included in the Securities the holders of which have consented
to such action, by filing written notice with the Trustee, and upon proof of
holding as provided in Section 8.02, may revoke such action so far as 


 


49

















 


concerns such Security. Except as aforesaid any such action taken by
the holder of any Security shall be conclusive and binding upon such holder and
upon all future holders and owners of such Security, and of any Security issued
in exchange therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon such
Security. Any action taken by the holders of the majority or percentage in
aggregate principal amount of the Securities of a particular series specified
in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Securities of that
series.


 


ARTICLE IX.


 


SUPPLEMENTAL INDENTURES


 


Section 9.01           Supplemental
Indentures Without the Consent of Securityholders.


 


In addition to any supplemental indenture
otherwise authorized by this Indenture, Parent, the Company and the Trustee
from time to time and at any time may enter into an indenture or indentures
supplemental hereto which shall conform to the provisions of the Trust
Indenture Act as then in effect, without the consent of the holders of any
series of Securities, for one or more of the following purposes:


 


(a)           to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any
series, including making such changes as are required for this Indenture to
comply with the Trust Indenture Act;


 


(b)           to
add an additional obligor on the Securities, or to evidence the succession of
another Person to Parent or the Company, or successive successions, and the
assumption by the successor Person of the covenants, agreements and obligations
of Parent or the Company, as the case may be, pursuant to Article X;


 


(c)           to
provide for uncertificated Securities in addition to or in place of
certificated Securities;


 


(d)           to
add to the covenants of the Company for the benefit of the holders of any
outstanding series of Securities (and if such covenants are to be for the
benefit of less than all outstanding series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon Parent or the Company;


 


(e)           to
add any additional Events of Default for the benefit of the holders of any
outstanding series of Securities (and if such Events of Default are to be
applicable to less than all outstanding series, stating that such Events of
Default are expressly being included solely to be applicable to such series);


 


(f)            to
change or eliminate any of the provisions of this Indenture, provided that any
such change or elimination shall not become effective with respect to any
outstanding Security of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision;


 


50

















 


(g)           to
secure the Securities of any series;


 


(h)           to
make any other change that does not adversely affect the rights of any Securityholder
of Outstanding Securities in any material respect;


 


(i)            to
provide for the issuance of and establish the form and terms and conditions of
the Securities of any series as provided in Section 2.01, to provide
which, if any, of the covenants of the Company shall apply to such series, to
provide which of the Events of Default shall apply to such series, to provide
for the terms and conditions upon which the Guarantee by Parent of such series
of Securities may be released or terminated, or to define the rights of the
holders of such series of Securities;


 


(j)            to
issue additional Securities of any series; provided that such additional
Securities have the same terms as, and be deemed part of the same series as,
the applicable series of Securities issued hereunder to the extent required by Section 2.01(b);
or


 


(k)           to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trust hereunder by more than one
Trustee.


 


Upon the request of the Company, accompanied
by Board Resolutions authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents described in Section 9.05,
the Trustee shall join with Parent and the Company in the execution of any such
supplemental indenture, and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture that affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


Any supplemental indenture authorized by the
provisions of this Section 9.01 may be executed by Parent, the Company and
the Trustee without the consent of the holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 9.02.


 


Section 9.02           Supplemental
Indentures with Consent of Securityholders.


 


With the consent (evidenced as provided in Section 8.01)
of the holders of not less than a majority in aggregate principal amount of the
Securities of each series at the time Outstanding affected by such supplemental
indenture or indentures, Parent and the Company, when authorized by Board
Resolutions, and the Trustee from time to time and at any time may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
not covered by Section 9.01 the rights of the holders of the Securities of
such series under this Indenture; provided, however, that no such supplemental
indenture, without the consent of the holders of each Security then Outstanding
and affected thereby, shall:  (i) extend
a fixed maturity of or any installment of principal of any Securities of any
series or reduce the principal amount thereof or reduce the amount of principal
of any original issue discount security that would be due and payable upon
declaration of acceleration of the maturity thereof; (ii) reduce the rate
of or extend the time for payment of 


 


51

















 


interest on any Security of any series; (iii) reduce the premium
payable upon the redemption of any Security; (iv) make any Security
payable in Currency other than that stated in the Security; (v) impair the
right to institute suit for the enforcement of any payment on or after the
fixed maturity thereof (or in the case of redemption, on or after the
redemption date); or (vi) reduce the aforesaid percentage of Securities,
the holders of which are required to consent to any such supplemental indenture
or indentures.


 


A supplemental indenture that changes or
eliminates any covenant, Event of Default or other provision of this Indenture
that has been expressly included solely for the benefit of one or more
particular series of Securities, if any, or which modifies the rights of the
holders of Securities of such series with respect to such covenant, Event of
Default or other provision, shall be deemed not to affect the rights under this
Indenture of the holders of Securities of any other series.


 


It shall not be necessary for the consent of
Securityholders of a series affected thereby under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.


 


Promptly after the execution by Parent, the
Company and the Trustee of any supplemental indenture pursuant to the
provisions of this Section 9.02, the Company shall mail or caused to be
mailed a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
Security Register, setting forth in general terms the substance of such
supplemental indenture.  Any failure of
the Company to mail such notice, or any defect therein, shall not in any way
impair or affect the validity of any such supplemental indenture.


 


Section 9.03           Effect
of Supplemental Indentures.


 


Upon the execution of any supplemental
indenture pursuant to the provisions of this Article IX or Section 10.01,
this Indenture shall be and be deemed to be modified and amended with respect
to such series in accordance therewith and the respective rights, limitations
of rights, obligations, duties and immunities under this Indenture of the
Trustee, Parent, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.


 


Section 9.04           Securities
Affected by Supplemental Indentures.


 


Securities of any series affected by a
supplemental indenture and authenticated and delivered after the execution of
such supplemental indenture pursuant to the provisions of this Article or
of Section 10.01 may bear a notation in form approved by the Company,
provided such form meets the requirements of any exchange upon which such
series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of that series so
modified as to conform, in the opinion of the Board of Directors of the
Company, to any modification of this Indenture contained in any such
supplemental indenture 


 


52

















 


may be prepared by the Company, authenticated by the Trustee in
accordance with the terms of this Indenture and delivered in exchange for the
Securities of that series then Outstanding.


 


Section 9.05           Execution
of Supplemental Indentures.


 


Upon the request of the Company, accompanied
by Board Resolutions authorizing the execution of any such supplemental
indenture, and, if applicable, upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as aforesaid, the
Trustee shall join with Parent and the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee in its discretion  may
but shall not be obligated to enter into such supplemental indenture.  The Trustee, subject to the provisions of Section 7.01,
may receive an Opinion of Counsel and Officer’s Certificate as conclusive
evidence that any supplemental indenture executed pursuant to this Article IX
is authorized or permitted by, and conforms to, the terms of this Article IX.


 


Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of
this Section 9.05, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders of all series affected thereby
as their names and addresses appear upon the Security Register. Any failure of
the Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.


 


ARTICLE X.


 


SUCCESSOR


 


Section 10.01         Consolidation,
Merger and Sale of Assets.


 


Each of Parent and the Company covenants that
it will not merge or consolidate with any other Person or sell or convey all or
substantially all of its assets to any Person, unless:


 


(i) either Parent or the Company, as the
case may be, shall be the continuing entity, or the successor entity or the
Person which acquires by sale or conveyance substantially all the assets of
Parent or the Company, as the case may be (if other than Parent or the Company,
as the case may be), (A) shall expressly assume the due and punctual
payment of the principal of, premium, if any, and interest on all the
Securities or the obligations under the Guarantees, as the case may be,
according to their tenor, and the due and punctual performance and observance
of all of the covenants and agreements of this Indenture to be performed or
observed by Parent or the Company, as the case may be, by supplemental indenture
reasonably satisfactory to the Trustee, executed and delivered to the Trustee
by such Person and (B) is an entity treated as a “corporation” for United
States tax purposes or Parent or the Company, as the case may be, obtains
either (x) an opinion, in form and substance reasonably acceptable to the
Trustee, of tax counsel of recognized standing reasonably acceptable to the
Trustee, which 


 


53

















 


counsel shall include Gibson, Dunn &
Crutcher LLP, or (y) a ruling from the United States Internal Revenue
Service, in either case to the effect that such merger or consolidation, or
such sale or conveyance, will not result in an exchange of the Securities for
new debt instruments for United States federal income tax purposes; and


 


(ii) no Event of Default and no event
that, after notice or lapse of time or both, would become an Event of Default
shall be continuing immediately after such merger or consolidation, or such
sale or conveyance.


 


The Company shall deliver to the Trustee
prior to the consummation of the proposed transaction an Officer’s Certificate
to the foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture.


 


To the extent that a Board Resolution or
supplemental indenture pertaining to any series provides for different
provisions relating to the subject matter of this Article X, the
provisions in such Board Resolution or supplemental indenture shall govern for
purposes of such series.


 


Section 10.02         Successor
Person Substituted.


 


Upon any consolidation or merger, or any
sale, lease, conveyance or other disposition of all or substantially all of the
assets of Parent or the Company, as the case may be, the successor Person
formed by such consolidation or into or with which Parent or the Company, as
the case may be, is merged or to which such sale, lease, conveyance or other
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, Parent or the Company, as the case may be, under this
Indenture with the same effect as if such successor Person has been named as
Parent or the Company, as the case may be, herein.  In the event of any such sale or conveyance
(other than a conveyance by way of lease) Parent or the Company, as the case
may be, or any successor entity which shall theretofore have become such in the
manner described in this Article X, shall be discharged from all
obligations and covenants under this Indenture, the Securities and the
Guarantees and may be liquidated and dissolved.


 


ARTICLE XI.


 


SATISFACTION AND DISCHARGE


 


Section 11.01         Applicability
of Article.


 


If the Securities of a  series are denominated and payable only in
Dollars (except as provided pursuant to Section 2.01), then the provisions
of this Article XI relating to defeasance of Securities shall be
applicable except as otherwise specified pursuant to Section 2.01 for
Securities of such series. Defeasance provisions, if any, for Securities
denominated in a Foreign Currency may be specified pursuant to Section 2.01.


 


Section 11.02         Satisfaction
and Discharge of Indenture.


 


If at any time:


 


54

















 


(a) Parent or the Company shall have
delivered or shall have caused to be delivered to the Trustee for cancellation
all Securities of a series theretofore authenticated, other than any Securities
that shall have been destroyed, lost or stolen and that shall have been
replaced or paid as provided in Section 2.07, and Securities for whose
payment funds or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by Parent or the Company and thereupon
repaid to Parent or the Company or discharged from such trust, as provided in Section 11.06;
or


 


(b) all such Securities of a particular
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and Parent
or the Company shall irrevocably deposit or cause to be deposited with the
Trustee as trust funds the entire amount, in funds or Governmental Obligations
sufficient, or a combination thereof sufficient, to pay at maturity or upon
redemption all Securities of such series not theretofore delivered to the
Trustee for cancellation, including principal, premium, if any, and interest
due or to become due on such date of maturity or redemption date, as the case
may be, and if in either case Parent or the Company shall also pay or cause to
be paid all other sums payable hereunder with respect to such series by the
Company,


 


then this Indenture shall cease to be of
further effect with respect to such series except for the provisions of
Sections 2.03, 2.04, 2.05, 2.07, 4.01, 4.02, 4.03, 7.05 and 7.10, that shall
survive until the date of maturity or redemption date, as the case may be, and
Sections 7.06 and 11.06 and Article XIV, that shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.


 


Section 11.03         Defeasance
and Discharge of Obligations; Covenant Defeasance.


 


(a)           If
at any time:


 


(i) all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or that have
not become due and payable as described in Section 11.02 shall have been
paid by Parent or the Company by depositing irrevocably with the Trustee in
trust funds or Governmental Obligations, or a combination thereof, sufficient
to pay at maturity or upon redemption all such Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal,
premium, if any, and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and


 


(ii) Parent or the Company shall also
pay or cause to be paid all other amounts payable hereunder by the Company with
respect to such series,


 


then, subject to Section 11.03(c), after
the date such funds or Governmental Obligations, as the case may be, are
deposited with the Trustee, the obligations of Parent and the Company under
this Indenture with respect to such series shall cease to be of further effect
except, to the extent 


 


55

















 


applicable to each, for the provisions of
Sections 2.03, 2.04, 2.05, 2.07, 4.01, 4.02, 4.03, 7.05 and 7.10 hereof that
shall survive until such Securities shall mature and be paid.  Thereafter, Sections 7.06 and 11.06 and Article XIV
shall survive such satisfaction and discharge.


 


(b)           In
addition, each of Parent and the Company, at its option and at any time, by
written notice executed by an Officer delivered to the Trustee, may elect to
have its obligations, to the extent applicable to each, under Section 5.03
and any covenant contained in Article X, and any other covenant contained
in the Board Resolution or supplemental indenture relating to such series
pursuant to Section 2.01, discharged with respect to all Outstanding
Securities of a series, this Indenture and any indentures supplemental to this
Indenture insofar as such Securities are concerned (“covenant defeasance”), such discharge to be effective on the
date the conditions set forth in clauses (i) through (vi) of Section 11.03(c) are
satisfied, and such Securities shall thereafter be deemed to be not “Outstanding”
for the purposes of any direction, waiver, consent or declaration of
Securityholders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be “Outstanding” for all other purposes under
this Indenture.  For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of a
series, Parent and the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section 6.01(a)(4) or
otherwise, but except as specified in this Section 11.03(b), the remainder
of Parent’s and the Company’s obligations under the Securities of such series,
this Indenture, and any indentures supplemental to this Indenture with respect
to such series shall be unaffected thereby.


 


(c)           The
following shall be the conditions to the application of Section 11.03 to
the Outstanding Securities of the applicable series:


 


(i)        Parent or the Company irrevocably
deposits in trust with the Trustee or, at the option of the Trustee, with a
trustee satisfactory to the Trustee and Parent or the Company, as the case may
be, under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, funds or Governmental Obligations sufficient to
pay principal of, premium, if any, and interest on the Outstanding Securities
of such series to maturity or redemption, as the case may be, and to pay all
other amounts payable by it hereunder, provided that (A) the trustee of
the irrevocable trust shall have been irrevocably instructed to pay such funds
or the proceeds of such Governmental Obligations to the Trustee and (B) the
Trustee shall have been irrevocably instructed to apply such funds or the
proceeds of such Governmental Obligations to the payment of said principal,
premium, if any, and interest with respect to the Securities of such series;


 


(ii)       Parent or the Company, as the case may
be, delivers to the Trustee an Officer’s Certificate stating that all
conditions precedent specified herein relating to defeasance or covenant
defeasance, as the case may be, have been complied with, and an Opinion of
Counsel to the same effect;


 


56
















 


(iii)      no Event of Default under clauses (1),
(2), (3), (5), (6) or (7) of Section 6.01(a) shall have
occurred and be continuing, and no event which with notice or lapse of time or
both would become such an Event of Default shall have occurred and be continuing,
on the date of such deposit;


 


(iv)      Parent or the Company, as the case may be,
shall have delivered to the Trustee an Opinion of Counsel or a ruling received
from the Internal Revenue Service to the effect that the holders of the
Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of Parent’s or the Company’s exercise of either
option under this Section 11.03 and will be subject to Federal income tax
in the same amount and in the same manner and at the same times as would have
been the case if such election had not been exercised;


 


(v)       such defeasance or covenant defeasance
shall not (i) cause the Trustee to have a conflicting interest for
purposes of the Trust Indenture Act with respect to any Securities or (ii) result
in the trust arising from such deposit to constitute, unless it is registered
as such, a regulated investment company under the Investment Company Act of
1940; and


 


(vi)      notwithstanding any other provisions of
this Section 11.03, such covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations
which may be imposed on Parent or the Company pursuant to Section 2.01.


 


After such irrevocable deposit made pursuant
to this Section 11.03 and satisfaction of the other conditions set forth
herein, the Trustee upon written request shall acknowledge in writing the
discharge of Parent’s and the Company’s obligations pursuant to this Section 11.03.


 


Section 11.04         Deposited Funds to be Held in Trust.


 


All funds or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.02 or 11.03 shall be held in
trust and shall be available for payment as due, either directly or through any
paying agent, including Parent or the Company acting as its own paying agent,
to the holders of the particular series of Securities for the payment or
redemption of which such funds or Governmental Obligations have been deposited
with the Trustee.


 


Section 11.05         Payment of Funds Held by Paying
Agents.


 


In connection with the provisions of Section 11.02
or 11.03, all funds or Governmental Obligations then held by any paying agent
under the provisions of this Indenture shall, upon demand of Parent or the
Company, be paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such funds or Governmental
Obligations.


 


Section 11.06         Repayment to Parent or the Company.


 


Any funds or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by Parent or the
Company, in trust for payment of principal of, premium, if any, or 


 


57

















 


interest on the Securities of a particular series that are not applied
but remain unclaimed by the holders of such Securities for at least one year
after the date upon which the principal of, premium, if any, or interest on
such Securities shall have respectively become due and payable, shall be repaid
to Parent or the Company, as applicable, 
or if then held by Parent or the Company shall be discharged from such
trust; and thereafter, the paying agent and the Trustee shall be released from
all further liability with respect to such funds or Governmental Obligations,
and the holder of any of the Securities entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to Parent or the
Company, as applicable, for the payment thereof. Anything in this Article XI
to the contrary notwithstanding, subject to Section 7.06, the Trustee
shall deliver or pay to Parent or the Company, as applicable, from time to time
upon written request by Parent or the Company, which shall be accompanied by an
Officer’s Certificate, any funds or Governmental Obligations (or other property
and any proceeds therefrom) held by it as provided in Sections 11.02 or 11.03
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect a defeasance or covenant defeasance, as the case may be, in
accordance with this Article XI.


 


Section 11.07         Reinstatement.


 


If the Trustee or paying agent is unable to
apply any funds or Governmental Obligations in accordance with Section 11.02
or 11.03 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, Parent and the Company’s obligations
under this Indenture, any indentures supplemental to this Indenture with
respect to the applicable series of Securities and the Securities of such
series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.02 or 11.03, as the case may be, until such time as
the Trustee or paying agent is permitted to apply all such funds or
Governmental Obligations in accordance with Section 11.02 or 11.03, as the
case may be; provided, however, that if Parent or the Company has made any
payment of principal, premium, if any, or interest on any Securities of such
series following the reinstatement of its obligations as aforesaid, Parent or
the Company, as applicable, shall be subrogated to the rights of the holders of
such Securities of such series to receive such payment from the funds or
Governmental Obligations held by the Trustee or paying agent.


 


ARTICLE XII.


 


IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS


 


Section 12.01         No Recourse.


 


No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, past, present or future as
such, of Parent or the Company or of any predecessor or successor corporation,
either directly or through Parent or the Company or any such predecessor or
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or 


 


58

















 


otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, shareholders, officers or directors as such, of Parent or the
Company or of any predecessor or successor corporation, or any of them, because
of the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Securities.


 


ARTICLE XIII.


 


MISCELLANEOUS PROVISIONS


 


Section 13.01         Effect on Successors and Assigns.


 


All the agreements of Parent and the Company
in this Indenture or the Securities shall bind their respective successors
whether so expressed or not. All agreements of the Trustee in this Indenture
shall bind its successor.


 


Section 13.02         Actions by Successor.


 


Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by any board,
committee or officer of Parent or the Company shall and may be done and
performed with like force and effect by the corresponding board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of Parent or the Company, as applicable.


 


Section 13.03         Notices.


 


Any notice or communication by Parent, the
Company or the Trustee to the others is duly given if in writing and delivered
in person or mailed by first-class mail (registered or certified, return
receipt requested), telex, telecopier or overnight air courier guaranteeing
next day delivery, to the other’s address:


 


	
  If to the Company:

  	
   

  	
  Tyco
  International Finance S.A.

  
	
   

  	
   

  	
  29 Avenue de la Porte Neuve

  
	
   

  	
   

  	
  L-2227 Luxembourg

  
	
   

  	
   

  	
  Attention: The Managing Directors

  
	
   

  	
   

  	
  Facsimile No.: 352 2663 7891

  
	
   

  	
   

  	
   

  
	
  If to Parent:

  	
   

  	
  Tyco International Ltd.

  
	
   

  	
   

  	
  90 Pitts Bay Road

  
	
   

  	
   

  	
  Pembroke HM08

  



 


59

















 


	
   

  	
   

  	
  Bermuda

  
	
   

  	
   

  	
  Attn: Chief Corporate
  Counsel

  
	
   

  	
   

  	
  Facsimile No.: (441)
  295-9647

  
	
   

  	
   

  	
   

  
	
  In either case, with
  copies to:

  
	
   

  
	
   

  	
   

  	
  Tyco International
  (U.S.), Inc.

  
	
   

  	
   

  	
  9 Roszel Road

  
	
   

  	
   

  	
  Princeton, New Jersey
  08540

  
	
   

  	
   

  	
  Attn: Treasurer

  
	
   

  	
   

  	
  Facsimile No.: (609)
  720-4208

  
	
   

  	
   

  	
   

  
	
  and

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Gibson, Dunn &
  Crutcher LLP

  
	
   

  	
   

  	
  200 Park Avenue

  
	
   

  	
   

  	
  New York, New York 10166

  
	
   

  	
   

  	
  Attention: Steven R.
  Finley

  
	
   

  	
   

  	
  Facsimile No.: (212)
  351-4035

  
	
   

  	
   

  	
   

  
	
  If to the Trustee:

  	
   

  	
  Deutsche Bank Trust
  Company Americas

  
	
   

  	
   

  	
  60 Wall
  Street, 27th Floor

  
	
   

  	
   

  	
  MS:
  NYC60-2710

  
	
   

  	
   

  	
  New York, NY
  10005

  
	
   

  	
   

  	
  Attention: Trust &
  Securities Services

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deutsche Bank National Trust Company

  
	
   

  	
   

  	
  for Deutsche Bank Trust Company Americas

  
	
   

  	
   

  	
  25 DeForest Avenue

  
	
   

  	
   

  	
  Mail Stop: SUM01-0105

  
	
   

  	
   

  	
  Summit, New Jersey 07901

  
	
   

  	
   

  	
  Attn: Trust & Securities Services

  
	
   

  	
   

  	
  Facsimile No.:
  732-578-4635

  



 


Parent, the Company or the Trustee by notice
to the others may designate additional or different addresses for subsequent
notices or communications.


 


All notices and communications, other than
those sent to Securityholders, shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery.


 


Any notice or communication to a
Securityholder shall be mailed by first-class mail, certified or registered,
return receipt requested, to his address shown on the Security Register. 


 


60

















 


Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders.


 


In the event of suspension of regular mail
service or by reason of any other cause it shall be impracticable to give
notice by mail, then such notification as shall be given with the approval of
the Trustee shall constitute sufficient notice for every purpose hereunder.


 


If a notice or communication is mailed in the
manner provided above within the time prescribed, it is conclusively presumed
duly given, whether or not the addressee receives it.


 


Section 13.04         Governing Law.


 


This Indenture and each Security shall be
deemed to be a contract made under the internal laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of said State
without regard to conflicts of laws principles that would require the
application of any other law. This Indenture is subject to the provisions of
the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.


 


Section 13.05         Treatment of Securities as Debt.


 


It is intended that the Securities will be
treated as indebtedness and not as equity for United States federal income tax
purposes. The provisions of this Indenture shall be interpreted to further this
intention.


 


Section 13.06         Compliance Certificates and Opinions.


 


(a)           Upon
any application or demand by Parent or the Company to the Trustee to take any
action under any of the provisions of this Indenture, Parent or the Company
shall furnish to the Trustee an Officer’s Certificate stating that, in the
opinion of the signer, all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically dealt with by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.


 


(b)           Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant in this
Indenture shall include:  (1) a
statement that the Person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that,
in the opinion of such Person, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as
to whether or not, in the opinion of such Person, such condition or covenant
has been complied with.


 


61

















 


Section 13.07         Payments on Business Days.


 


Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an Officer’s Certificate or
established in one or more indentures supplemental to this Indenture, in any
case where the date of maturity of interest or principal of any Security or the
date of redemption of any Security shall not be a Business Day, then payment of
principal, premium, if any, or interest or principal and premium, if any, may
be made on the next succeeding Business Day with the same force and effect as
if made on the nominal date of maturity or redemption, and no interest shall
accrue for the period after such nominal date.


 


Section 13.08         Conflict with Trust Indenture Act.


 


If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.


 


Section 13.09         Counterparts.


 


This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.


 


Section 13.10         Separability.


 


In case any one or more of the provisions
contained in this Indenture or in the Securities of any series shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.


 


Section 13.11         No Adverse Interpretation of Other
Agreements.


 


This Indenture may not be used to interpret
another indenture, loan or debt agreement of Parent, the Company or a
Subsidiary. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.


 


Section 13.12         Table of Contents, Headings, Etc.


 


The Table of Contents, Cross-Reference Table
and Headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms or provisions hereof.


 


Section 13.13         Consent to Jurisdiction and Service
of Process.


 


Each of Parent and the Company agrees that
any legal suit, action or proceeding brought by any party to enforce any rights
under or with respect to this Indenture, any Security and any Guarantee or any
other document or the transactions contemplated hereby or thereby may be
instituted in any state or federal court in The City of New York, State of New
York, United States of America, irrevocably waives to the fullest extent
permitted by law any objection which 


 


62

















 


it may now or hereafter have to the laying of venue of any such suit,
action or proceeding, irrevocably waives to the fullest extent permitted by law
any claim that and agrees not to claim or plead in any court that any such
action, suit or proceeding brought in such court has been brought in an
inconvenient forum and irrevocably submits to the non-exclusive jurisdiction of
any such court in any such suit, action or proceeding or for recognition and
enforcement of any judgment in respect thereof.


 


Each of Parent and the Company hereby
irrevocably and unconditionally designates and appoints CT Corporation System,
111 Eighth Avenue, New York, New York 10011, U.S.A. (and any successor entity)
as its authorized agent to receive and forward on its behalf service of any and
all process which may be served in any such suit, action or proceeding in any
such court and agrees that service of process upon CT Corporation shall be
deemed in every respect effective service of process upon the Company in any
such suit, action or proceeding and shall be taken and held to be valid
personal service upon Parent or the Company, as the case may be.  Said designation and appointment shall be irrevocable.  Nothing in this Section 13.13 shall
affect the right of the Holders to serve process in any manner permitted by law
or limit the right of the Holders to bring proceedings against Parent or the
Company in the courts of any jurisdiction or jurisdictions.  Each of Parent and the Company further agrees
to take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation in full force and effect so long
as the Securities are outstanding.  Each
of Parent and the Company hereby irrevocably and unconditionally authorizes and
directs CT Corporation to accept such service on its behalf.  If for any reason CT Corporation ceases to be
available to act as such, each of Parent and the Company agrees to designate a
new agent in New York City.


 


To the extent that Parent or the Company has
or hereafter may acquire any immunity from jurisdiction of any court (including
any court in the United States, the State of New York, Luxembourg, Bermuda or
other jurisdiction in which Parent or the Company, or any successor thereof,
may be organized or any political subdivisions thereof) or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property or assets, this Indenture, the Securities, the Guarantees or
any other documents or actions to enforce judgments in respect of any thereof,
then each of Parent and the Company hereby irrevocably waives such immunity,
and any defense based on such immunity, in respect of its obligations under the
above-referenced documents and the transactions contemplated thereby, to the
extent permitted by law.


 


Section 13.14         Waiver of Jury Trial.


 


EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


63

















 


Section 13.15         USA Patriot Act.


 


The parties hereto acknowledge that in
accordance with Section 326 of the USA Patriot Act the Trustee, like all
financial institutions and in order to help fight the funding of terrorism and
money laundering, is required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens
an account with Deutsche Bank Trust Company Americas.  The parties to this Indenture agree that they
will provide the Trustee with such information as it may request in order for
the Trustee to satisfy the requirements of the USA Patriot Act.


 


ARTICLE XIV.


 


ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS


 


Section 14.01         Redemption Upon Changes in
Withholding Taxes.


 


The Securities of any series may be redeemed,
as a whole but not in part, at the option of the Company, upon not less than 30
nor more than 90 days notice (which notice shall be irrevocable), at a redemption
price equal to 100% of the principal amount thereof, together with accrued
interest, if any, to the redemption date and Additional Amounts (as defined in Section 14.02),
if any, if as a result of any amendment to, or change in, the laws or
regulations of Luxembourg, Bermuda or the United States, as applicable, or any
political subdivision thereof or therein having the power to tax (a “Taxing Jurisdiction”), or any change in the
application or official interpretation of such laws, including any action taken
by a taxing authority or a holding by a court of competent jurisdiction
(regardless of whether such action or such holding is with respect to the
Company or Parent), which amendment or change is announced or becomes effective
after the date the Securities of such series are issued, Parent or the Company
has become, or there is a material probability that it will become, obligated
to pay Additional Amounts on the next date on which any amount would be payable
with respect to the Securities of such series, and such obligation cannot be
avoided by the use of commercially reasonable measures available to Parent or
the Company, as the case may be; provided, however, that (a) no such
notice of redemption may be given earlier than 90 days prior to the earliest
date on which Parent or the Company, 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)(A) certificate signed by two directors of the Company
stating that the obligation to pay Additional Amounts cannot be avoided by the
Company taking commercially reasonable measures available to it or (B) a
certificate signed by two Officers of Parent stating that the obligation to pay
Additional Amounts cannot be avoided by Parent taking commercially reasonable
measures available to it, as the case may be, and (ii) a written opinion
of independent legal counsel to Parent or the Company, as the case may be, of
recognized standing to the effect that the Company has or there is a material
probability that it will become obligated to pay Additional Amounts as a result
of a change, amendment, official interpretation or application described above
and that Parent or the Company, as the case may be, cannot avoid the payment of
such Additional Amounts by taking commercially reasonable measures available to
it.


 


64
















 


Section 14.02         Payment of Additional Amounts.


 


All payments made by Parent or the Company
under or with respect to the Securities and the Guarantees will be made free
and clear of and without withholding or deduction for or on account of any
present or future taxes, duties, levies, imposts, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of any Taxing
Jurisdiction (“Taxes”), unless
Parent or the Company, 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 Parent or the Company is
required to so withhold or deduct any amount for or on account of any Taxes
from any payment made under or with respect to the Securities or the
Guarantees, as the case may be, Parent or the Company, as the case may be, will
pay such additional amounts (“Additional
Amounts”) as may be necessary so that the net amount received by
each holder of Securities (including Additional Amounts) after such withholding
or deduction will equal the amount that such Holder would have received if such
Taxes had not been required to be withheld or deducted; provided that no
Additional Amounts will be payable with respect to a payment to a holder of
Securities or a holder of a beneficial interests in Global Securities where
such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason
other than such holder’s mere ownership of the Securities or for or on
account of:


 


(a)           any
Taxes that are imposed or withheld solely because such holder or a fiduciary,
settler, beneficiary, or member of such holder if such holder is an estate,
trust, partnership, limited liability company or other fiscally transparent
entity, or a person holding a power over an estate or trust administered by a
fiduciary holder:


 


(i)                                     is
or was present or engaged in, or is or was treated as present or engaged in, a
trade or business in the Taxing Jurisdiction or has or had a permanent
establishment in the Taxing Jurisdiction;


 


(ii)                                  has
or had any present or former connection (other than the mere fact of ownership
of such Securities) with the Taxing Jurisdiction imposing such Taxes, including
being or having been a citizen or resident thereof or being treated as being or
having been a resident thereof;


 


(iii)                               with
respect to any withholding Taxes imposed by the United States, is or was with
respect to the United States a personal holding company, a passive foreign
investment company, a controlled foreign corporation, a foreign tax exempt
organization or corporation that has accumulated earnings to avoid United
States federal income tax; or


 


(iv)                              owns
or owned 10% or more of the total combined voting power of all classes of stock
of the Parent or the Company;


 


(b)           any
estate, inheritance, gift, sales, transfer, excise or personal property Taxes
imposed with respect to the Securities, except as otherwise provided herein;


 


(c)           any
Taxes imposed solely as a result of the presentation of such Securities (where
presentation is required) for payment on a date more than 30 days after the
date on which such payment became due and payable or the date on which payment
thereof is 


 


65

















 


duly provided for, whichever is
later, except to the extent that the beneficiary or holder thereof would have
been entitled to the payment of Additional Amounts had the Securities been
presented for payment on any date during such 30-day period;


 


(d)           any
Taxes imposed solely as a result of the failure of such holder or any other
person to comply with applicable certification, information, documentation or
other reporting requirements concerning the nationality, residence, identity or
connection with the Taxing Jurisdiction of such holder, if such compliance is
required by statute or regulation of the relevant Taxing Jurisdiction as a
precondition to relief or exemption from such Taxes;


 


(e)           with
respect to withholding Taxes imposed by the United States, any such Taxes
imposed by reason of the failure of such holder to fulfill the statement
requirements of sections 871(h) or 881(c) of the Code;


 


(f)            any
Taxes that are payable by any method other than withholding or deduction by the
Parent or the Company or any paying agent from payments in respect of such
Securities;


 


(g)           any
Taxes required to be withheld by any paying agent from any payment in respect
of any Securities if such payment can be made without such withholding by at
least one other paying agent;


 


(h)           any
Taxes required to be deducted or withheld pursuant to the European Council
Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in
the form of interest payments, or any amendment thereof, or any law
implementing or complying with, or introduced in order to conform to, that
Directive or the Luxembourg Law of December 23, 2005, as amended;


 


(i)            any
withholding or deduction for Taxes which would not have been imposed if the
relevant Securities had been presented to another paying agent in a Member
State of the European Union; or


 


(j)            any
combination of Section 14.02(a), (b), (c), (d), (e), (f), (g), (h) and
(i).


 


Additional Amounts will not be payable to or
for the account of any Holder or the holder of a beneficial interest in a
Global Security if such payment would not be subject to such withholding or
deduction of Taxes but for the failure of a Holder or the holder of a
beneficial interest in a Global Security to make a valid declaration of
non-residence or other similar claim for exemption or to provide a certificate
declaring its non-residence, if the Company were treated as a domestic
corporation under United States federal income tax and if (x) the making
of such declaration or claim or the provision of such certificate 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 Tyco or the Company shall apply this
paragraph, Tyco or the Company shall have notified all Holders of Securities in
writing that they shall be required to provide such declaration or claim.


 


66

















 


Additional Amounts also will not be payable
to any Holder or the holder of a beneficial interest in a Global Security that
is a fiduciary, partnership, limited liability company or other fiscally
transparent entity, or to such holder that is not the sole Holder or holder of
such beneficial interests of such Security, as the case may be.  This exception, however, will apply only to
the extent that a beneficiary or settlor with respect to the fiduciary, or a
beneficial owner or member of the partnership, limited liability company or
other fiscally transparent entity, would not have been entitled to the payment
of an Additional Amount had the beneficiary, settlor, beneficial owner or
member  received directly its beneficial
or distributive share of the payment.


 


Parent or the Company, 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
Jurisdiction in accordance with all applicable laws.  Parent or the Company, as applicable, will
use its commercially reasonable 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. 
Parent or the Company, as the case may be, will, upon request, make
available to the holders of the Securities, within 90 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 Parent or the
Company or if, notwithstanding Parent’s or the Company’s efforts to obtain such
receipts, the same are not obtainable, other evidence of such payments by
Parent or the Company.


 


At least 30 days prior to each date on which
any payment under or with respect to the Securities or Guarantees is due and
payable, if Parent or the Company will be obligated to pay Additional Amounts
with respect to such payment, Parent or the Company will deliver to the Trustee
an Officer’s Certificate stating the fact that such Additional Amounts will be
payable, the amounts so payable and will set forth such other information as is
necessary to enable such Trustee to pay such Additional Amounts to holders of
Securities on the payment date.


 


In addition, the Company will pay any stamp,
issue, registration, documentary or other similar taxes and duties, including
interest, penalties and Additional Amounts with respect thereto, payable in
Luxembourg or the United States or any political subdivision or taxing
authority of or in the foregoing in respect of the creation, issue, offering,
enforcement, redemption or retirement of the Securities.


 


The provisions of this Article XIV shall
survive any termination of the discharge of this Indenture and shall apply
mutatis mutandis to any jurisdiction in which Parent or the Company or any
successor Person to Parent or the Company, 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
Parent or the Company changes its jurisdiction in which it is organized or such
Person becomes a successor to Parent or the Company, as the case may be, shall
be substituted for the date on which the series of Securities was issued.


 


Whenever in this Indenture, the Securities 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 Security, such mention shall be deemed to include 


 


67

















 


mention of the payment of Additional Amounts to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof.


 


ARTICLE XV.


 


GUARANTEES


 


Section 15.01         Guarantee.


 


Parent hereby fully and unconditionally
guarantees (i) to each Holder of each Security that is authenticated and
delivered by the Trustee, and (ii) to the Trustee on behalf of such
Holder, the due and punctual payment of the principal of, premium, if any, and
interest on such Security when and as the same shall become due and payable,
whether at the stated maturity, by acceleration, call for redemption or
otherwise, in accordance with the terms of such Security and of this
Indenture.  In case of the failure of the
Company punctually to make any such payment, Parent hereby agrees to cause such
payment to be made punctually when and as the same shall become due and
payable, whether at the stated maturity or by acceleration, call for redemption
or otherwise, and as if such payment were made by the Company.


 


Parent hereby agrees that its obligations
hereunder shall be absolute and unconditional, irrespective of, and shall be
unaffected by, the validity, regularity or enforceability of such Security or
this Indenture, the absence of any action to enforce the same or any release,
amendment, waiver or indulgence granted to the Company or Parent or any consent
to departure from any requirement of any other guarantee of all or any of the
Securities or any other circumstances which might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor.  Parent hereby waives the benefits of
diligence, presentment, demand for payment, any requirement that the Trustee or
any of the Holders protect, secure, perfect or insure any security interest in
or other lien on any property subject thereto or exhaust any right or take any
action against the Company or any other Person or any collateral, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest or notice with
respect to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged in respect
of such Security except by complete performance of the obligations contained in
such Security and in such Guarantee. 
Parent agrees that if, after the occurrence and during the continuance
of an Event of Default, the Trustee or any of the Holders of the applicable
series of Securities are prevented by applicable law from exercising their
respective rights to accelerate the maturity of such Securities, to collect
interest on such Securities, or to enforce or exercise any other right or
remedy with respect to such Securities, Parent agrees to pay to the Trustee for
the account of such Holders, upon demand therefor, the amount that would
otherwise have been due and payable had such rights and remedies been permitted
to be exercised by the Trustee or any of such Holders.


 


Parent shall be subrogated to all rights of
the holders of the Securities against the Company in respect of any amounts
paid by Parent on account of such Security pursuant to the provisions of its
Guarantee or this Indenture; provided, however, that Parent shall not be
entitled to enforce or to receive any payment arising out of, or based upon,
such right of subrogation until 


 


68

















 


the principal of and interest on all Securities of such series issued
hereunder shall have been paid in full.


 


The Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company for liquidation or reorganization, should the Company become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any part of the Company’s assets,
and shall, to the fullest extent permitted by law, continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of
such Securities, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any holder of such
Securities, whether as a “voidable preference,” “fraudulent transfer,” or
otherwise, all as though such payment or performance had not been made.  In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, such Securities shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.


 


Any term or provision of the Guarantee to the
contrary notwithstanding, the aggregate amount of the obligations guaranteed
hereunder shall be reduced to the extent necessary to prevent such Guarantee
from violating or becoming voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.


 


Section 15.02         Execution and Delivery of Guarantee.


 


The Guarantee shall include the terms of the
Guarantee set forth in Section 15.01 and shall be substantially in the
form established pursuant to Section 2.16. 
Parent hereby agrees to execute its Guarantee, in a form established
pursuant to Section 2.16, on each Security authenticated and delivered by
the Trustee.


 


The Guarantee shall be executed on behalf of
Parent by any one of its chairman of the Board of Directors, president, vice
presidents or other person duly authorized by Parent’s Board of Directors.  The signature of any or all of these persons
on the Guarantee may be manual or facsimile.


 


A Guarantee bearing the manual or facsimile
signature of individuals who were at any time the proper officers of Parent
shall bind Parent, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of any
Security or did not hold such offices at the date of such Guarantee.


 


The delivery of any Security by the Trustee,
after the authentication thereof, shall constitute due delivery of the
Guarantee on behalf of Parent and shall bind Parent notwithstanding the fact
that the Guarantee does not bear the signature of Parent.  Parent agrees that its Guarantee set forth in
Section 15.01 and in the form of Guarantee established pursuant to Section 2.16
shall remain in full force and effect notwithstanding any failure to execute a
Guarantee on any such Security.


 


69

















 


Section 15.03         Release of Guarantee.


 


Notwithstanding anything in this Article XV
to the contrary, concurrently with the payment in full of the principal of,
premium, if any, and interest on Securities of a series, Parent shall be
released from and relieved of its obligations under this Article XV with
respect to the Securities of such series. 
Upon the delivery by the Company to the Trustee of an Officer’s
Certificate and an Opinion of Counsel to the effect that the transaction giving
rise to the release of this Guarantee was made by the Company in accordance with
the provisions of this Indenture and the Securities, the Trustee shall execute
any documents reasonably required in order to evidence the release of Parent
from its obligations under this Guarantee. 
If any of the obligations to pay the principal of, premium, if any, and
interest on such Securities and all other obligations of the Company are
revived and reinstated after the termination of this Guarantee, then all of the
obligations of Parent under this Guarantee shall be revived and reinstated as
if this Guarantee had not been terminated until such time as the principal of,
premium, if any, and interest on such Securities are paid in full, and Parent
shall enter into an amendment to this Guarantee, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.


 


70

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed all as of the day and year first
above written.


 


	
   

  	
  TYCO INTERNATIONAL
  FINANCE S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Enrica Maccarini

  
	
   

  	
   

  	
  Name: Enrica Maccarini

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TYCO INTERNATIONAL
  LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Christopher J. Coughlin

  
	
   

  	
   

  	
  Name: Christopher J. Coughlin

  
	
   

  	
   

  	
  Title: Executive Vice President and Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST
  COMPANY

  AMERICAS

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Wanda Camacho

  
	
   

  	
   

  	
  Name: Wanda Camacho

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Annie Jaghatspanyan

  
	
   

  	
   

  	
  Name: Annie Jaghatspanyan

  
	
   

  	
   

  	
  Title: Assistant Vice President

  



 


71
















 


EXHIBIT A


 


FORM OF CERTIFICATE OF TRANSFER


 


Tyco
International Finance S.A.


29 Avenue de la Porte Neuve


L-2227 Luxembourg


Attention: The Managing Directors


 


Deutsche Bank Trust Company
Americas

60 Wall Street, 27th Floor

MS: NYC60-2710

New York, NY 10005


Attention:  Trust & Securities Services


 


Deutsche Bank Services Tennessee Inc.

648 Grassmere Park Road

Nashville, TN USA 37211

Attention: Transfer Department

Telephone: 800-735-7777


 


Re: [insert description of
Securities]


 


Ladies and Gentlemen,


 


Reference is hereby made to the Indenture, dated as of January 9,
2009, among Tyco International Finance S.A., a Luxembourg company (the “Company”), Tyco International Ltd., a
Bermuda company (“Parent”), and
Deutsche Bank Trust Company Americas, a New York banking corporation, as
trustee (the “Trustee”), [as
supplemented by that certain supplemental indenture dated as of
                  ][and
the Board Resolution adopted                     ]
(together, the “Indenture”).
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 Security or Securities or interest[s] in such Security
or Securities specified in Annex A hereto, in the principal amount of
$                  
in such Security or Securities or interest[s] (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.                                       o                                    Check if
Transferee will take delivery of a beneficial interest in the 144A Global
Security or a Definitive Security 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
Security is being transferred to a Person that the Transferor reasonably
believed and believes is purchasing the beneficial interest or Definitive
Security 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 buyer” 


 


A-1

















 


within the meaning of Rule 144A
(a “QIB”) 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 Security will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Security and/or the Definitive Security and
in the Indenture and the Securities Act.


 


2.                                       o                                    Check if
Transferee will take delivery of a beneficial interest in the Regulation S
Global Security or a Definitive Security 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 (y) 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 (z) 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 Distribution Compliance Period, the
Transfer is not being made to a U.S. person (as such is defined in Regulation
S) or for the account or benefit of a U.S. person (other than an initial
purchaser of the Securities) and the interest transferred will be held
immediately thereafter through Euroclear or Clearstream. Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Security and/or the Definitive Security and in the
Indenture and the Securities Act.


 


3.                                       o                                    Check and
complete if Transferee will take delivery of a beneficial interest in a
Definitive Security 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 Restricted
Global Securities and Restricted Definitive Securities 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 (check one):


 


(a)                                  o                                    Such
Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act; or


 


(b)                                 o                                    Such
Transfer is being effected to the Company or a subsidiary thereof; or


 


(c)                                  o                                    Such
Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act.


 


A-2

















 


4.                                       o                                    Check if
Transferee will take delivery of a beneficial interest in an Unrestricted
Global Security or of an Unrestricted Definitive Security.


 


(a)                                  o                                    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 Security will
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture and the Securities Act.


 


(b)                                 o                                    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 Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities, on Restricted Definitive Securities and in
the Indenture and the Securities Act.


 


(c)                                  o                                    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 Security will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Securities or Restricted
Definitive Securities and in the Indenture.


 


A-3

















 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.


 


	
   

  	
             Dated:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [Insert Name of Transferor]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 


A-4

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.                                       The
Transferor owns and proposed to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)                                  o                                    a
beneficial interest in the:


 


(i)                                     o                                    144A
Global Security (CUSIP
              ),
or


 


(ii)                                  o                                    Regulation
S Global Security (CUSIP
              ),
or


 


(b)                                 o                                    a
Restricted Definitive Security.


 


2.                                       After
the transfer the Transferee will hold:


 


(a)                                  o                                    a
beneficial interest in the:


 


(i)                                     o                                    144A
Global Security (CUSIP
              ),
or


 


(ii)                                  o                                    Regulation
S Global Security (CUSIP
              ),
or


 


(iii)                               o                                    Unrestricted
Global Security (CUSIP
              );
or


 


(b)                                 o                                    a
Restricted Definitive Security; or


 


(c)                                  o                                    an
Unrestricted Definitive Security,


 


in accordance with the terms of the Indenture.


 


A-5

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF EXCHANGE


 


Tyco
International Finance S.A.


29 Avenue de la Porte Neuve


L-2227 Luxembourg


Attention: The Managing Directors


 


Deutsche Bank Trust Company
Americas

60 Wall Street, 27th Floor

MS: NYC60-2710

New York, NY 10005


Attention:  Trust & Securities Services


 


Deutsche Bank Services Tennessee Inc.

648 Grassmere Park Road

Nashville, TN USA 37211

Attention: Transfer Department

Telephone: 800-735-7777


 


Re: [insert description of
the Securities]


 


Ladies and Gentlemen,


 


Reference is hereby made to the Indenture, dated as of January 9,
2009, among Tyco International Finance S.A., a Luxembourg company (the “Company”), Tyco International Ltd., a
Bermuda company (“Parent”), and
Deutsche Bank Trust Company Americas, a New York banking corporation, as
trustee (the “Trustee”) [as
supplemented by that certain supplemental indenture dated as of
                  ][and
the Board Resolution adopted                     ]
(together, the “Indenture”).
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.


 


                              ,
(the “Owner”) owns and proposes to
transfer the Security or Securities or interest[s] in such Security or Securities
specified herein, in the principal amount of
$                  
in such Security or Securities or interest[s] (the “Exchange”). In connection with the Transfer, the Transferor
hereby certifies that:


 


1.                                       Exchange of Restricted Definitive
Securities or Beneficial Interests in a Restricted Global Security for
Unrestricted Definitive Securities or Beneficial Interests in an Unrestricted
Global Security.


 


(a)                                  o                                    Check if Exchange is from beneficial
interest in a Restricted Global Security to beneficial interest in an
Unrestricted Global Security. In connection with the Exchange of
the Owner’s beneficial interest in a Restricted Global Security for a
beneficial interest in an Unrestricted Global Security in an equal principal
amount, the Owner hereby 


 


C-1

















 


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 Securities 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 Security is
being acquired in compliance with any applicable blue sky securities laws of
any State of the United States.


 


(b)                                 o                                    Check if Exchange is from beneficial
interest in a Restricted Global Security to Unrestricted Definitive Security.
In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Security for an Unrestricted Definitive Security in an equal principal amount, the Owner
hereby certifies (i) the Definitive Security 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 Restricted
Global Securities and pursuant to and in accordance with 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 Definitive Security is being acquired in compliance with any
applicable blue sky securities laws of any State of the United States.


 


(c)                                  o                                    Check if Exchange is from Restricted
Definitive Security to beneficial interest in an Unrestricted Global Security.
In connection with the Owner’s Exchange of a Restricted Definitive Security for
a beneficial interest in an Unrestricted Global Security, 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 Restricted Definitive
Securities and pursuant to and in accordance with 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 Security is
being acquired in compliance with any applicable blue sky securities laws of
any State of the United States.


 


(d)                                 o                                    Check if Exchange is from Restricted
Definitive Security to Unrestricted Definitive Security.  In connection with the Owner’s Exchange of a
Restricted Definitive Security for an Unrestricted Definitive Security, the
Owner hereby certifies (i) the Unrestricted Definitive Security 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
Restricted Definitive Securities and pursuant to and in accordance with 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 Unrestricted
Definitive Security is being acquired in compliance with any applicable blue
sky securities laws of any State of the United States.


 


2.                                       Exchange of Restricted Definitive
Securities or Beneficial Interests in Restricted Global Securities for
Restricted Definitive Securities or Beneficial Interests in Restricted Global
Securities.


 


C-2

















 


(a)                                  o                                    Check if Exchange is from beneficial
interest in a Restricted Global Security to Restricted Definitive Security.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Security for a Restricted Definitive
Security with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Security 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 Security issued will
continue to be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Security and in
the Indenture and the Securities Act.


 


(b)                                 o                                    Check if Exchange is from Restricted
Definitive Security to beneficial interest in a Restricted Global Security.  In connection with the Exchange of the Owner’s
Restricted Definitive Security for a beneficial interest in the: [CHECK ONE] o
144A Global Security or o Regulation S
Global Security 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 Restricted Global Securities 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 relevant
Restricted Global Security and in the Indenture and the Securities Act.


 


C-3

















 


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:

  	
   

  	
   

  	
   

  
					



 


C-4