EXHIBIT 10.8
FACILITY AGREEMENT AMENDMENT NO. 1 AND WAIVER
THIS FACILITY AGREEMENT AMENDMENT NO. 1 AND WAIVER (this
"Amendment"), dated as of 30 June, 1997 between ADT Finance PLC (the
"Borrower"), ADT (UK) Holdings PLC, Modern Security Systems Limited, ADT Group
PLC and Electric Protection Services Limited (each an "Initial Guarantor"),
Automated Security (Holdings) PLC (an "Additional Guarantor") and The Bank of
Nova Scotia (as "Agent")
W I T N E S S E T H;
WHEREAS, pursuant to a Facility Agreement, dated as of 17
March, 1997 (as amended or otherwise modified from time to time, the "Facility
Agreement") between the Borrower, the Initial Guarantors, the Additional
Guarantor, the Agent, The Bank of Nova Scotia (as "Arranger") and the
financial institutions as are parties thereto (collectively the "Banks"), the
Banks made available a Pound Sterling 90,000,000 facility;
WHEREAS, in connection with the Facility Agreement, ADT Limited
executed and delivered in favour of the Agent and the Banks the guarantee dated
as of 25 March, 1997 (as amended or otherwise modified from time to time, the
"ADT Limited Guarantee");
WHEREAS, ADT Limited has established Limited Apache, Inc., a
Massachusetts corporation and direct Wholly-Owned Subsidiary of ADT Limited
("Apache"), in connection with the proposed merger of Apache with and into
Tyco International Ltd., a Massachusetts corporation ("Tyco"), pursuant to,
and in accordance with, the Agreement and Plan of Merger dated as of 17 March,
1997, among ADT Limited, Apache and Tyco (the "Merger");
WHEREAS, the Borrower has requested a temporary waiver of the
Event of Default which would otherwise arise under Clause 19.15 of the Facility
Agreement and the Borrower has agreed that, unless otherwise agreed by an
Instructing Group, an Event of Default will arise on 30 September 1997 by
reason of the Merger; and
WHEREAS, the Instructing Group has confirmed to the Agent its
consent to such requests, subject to the terms and conditions of this
Amendment;
NOW, THEREFORE, for good and valuable consideration the receipt
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise defined or the context otherwise requires,
terms for which meanings are provided in the Facility Agreement shall have
such meanings when used in this Amendment.
ARTICLE II
AMENDMENTS AND CONSENT
SECTION 2.1 Amendments to the Credit Agreement. Subject to the
terms and conditions set forth herein and in reliance on the representations
and warranties of the Borrower herein contained, the Facility Agreement is
amended as set forth in this Section 2.1.
SECTION 2.1.1 Amendment to Clause 1.1
(a) CLAUSE 1.1 of the Facility Agreement is amended by adding
the following terms and definitions:
"Material Tyco Party" means each Tyco Subsidiary which
(a) accounted for at least 10% of the consolidated gross
revenues of the Tyco Subsidiaries for the most recently
completed Financial Quarter: or
(b) has assets which represent at least 10% of the
consolidated gross assets of the Tyco Subsidiaries as
of the last day of the most recently completed
Financial Quarter.
"Tyco" means Tyco International, Ltd., a Massachusetts
corporation.
"Tyco Subsidiary" means Limited Apache. Inc., a Massachusetts
corporation, Tyco and each Subsidiary of Tyco as of 30 June
1997, and each Subsidiary of Tyco formed thereafter.
SECTION 2.1.2 Amendment to Clause 19.6. Clause 19.6 of the
Facility Agreement is amended by replacing the phrase " Pound
Sterling10,000,000 (or its equivalent in any other currency)" in each of the
three places it appears with the phrase " Pound Sterling10,000,000 or, in the
case of a Tyco Subsidiary prior to 30 September 1997, $30,000,000 (or, in each
case, its equivalent in any other currency)".
SECTION 2.1.3 Amendment to Clause 19.10. Clause 19.10 of the
Facility Agreement is amended by inserting the parenthetical "(or "$30,000,000
in the case of a Tyco Subsidiary prior to September 30, 1997)" after the
reference therein to " Pound Sterling10,000,000".
SECTION 2.2 Waiver. Subject to the terms and conditions set
forth herein and in reliance on the representations and warranties of the
Borrower herein contained, the Agent on behalf of the Instructing Group waives
until 30 September 1997 the Event of Default which would otherwise arise under
Clause 19.15 of the Facility Agreement by reason of the Merger and the
Borrower and the Group Guarantors agree that, unless otherwise agreed in
writing by the Agent on behalf of an Instructing Group, an Event of Default
will arise on 30 September 1997 by reason of the Merger.
This waiver shall be limited precisely as written and in no
event shall be deemed to constitute a waiver of compliance by the Borrower
with respect to any other term, provision or condition of the Facility
Agreement or any other Finance Document or prejudice any right or remedy that
the Agent or any Bank may now have or may have in the future under or in
connection with the Facility Agreement, any other Finance Document or any
other instrument or agreement referred to therein
ARTICLE III
CONDITIONS PRECEDENT
This Agreement shall become effective, as of the date hereof,
upon the receipt by the Agent of counterparts hereto executed on behalf of the
Borrower and the Group Guarantors.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent on behalf of the Instructing Group
to enter into this Amendment, the Borrower hereby reaffirms, as of the date
hereof, the representations and warranties contained in Clause 15 (other than
Clause 15.7, 15.10, 15.11 and 15.12) of the Facility Agreement and
additionally represents and warrants to the Agent for the helmet of each of
the Banks that no Event of Default or Potential Event of Default has occurred
and is continuing other than as contemplated herein in relation to the Merger.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 Ratification of and References to the Facility
Agreement. This Amendment shall be deemed to be an amendment to the Facility
Agreement, and the Facility Agreement, as amended hereby, is hereby ratified,
approved and confirmed in each and every respect. All references to the
Facility Agreement in any other document, instrument, agreement or writing
shall hereafter be deemed to refer to the Facility Agreement as amended hereby.
SECTION 5.2 Headings. The various headings of this Amendment
are inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provisions hereof.
SECTION 5.3 Execution in Counterparts. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one
and the same agreement.
SECTION 5.4 Finance Document. This Amendment shall be deemed
to be a Finance Document.
SECTION 5.5 ADT Limited Guarantee. Each of the Borrower and
each Group Guarantor hereby consents to and acknowledges the provisions of the
ADT Limited Guarantee and Waiver Consent to be entered into between ADT Limited
and the Agent.
SECTION 5.6 Governing Law. This Amendment shall be governed by
and construed in accordance with English law.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorised
as of the day and year first above written.
ADT FINANCE PLC
By X.X. Xxxxxxx
--------------------------------
Title: Director
ADT (UK) HOLDINGS PLC
By X.X. Xxxxxxx
--------------------------------
Title: Director
MODERN SECURITY SYSTEMS LIMITED
By X.X. Xxxxxxx
--------------------------------
Title: Director
ADT GROUP PLC
By X.X. Xxxxxxx
--------------------------------
Title: Director
ELECTRIC PROTECTION SERVICES
LIMITED
By X.X. Xxxxxxx
--------------------------------
Title: Director
AUTOMATED SECURITY (HOLDINGS)
PLC
By X.X. Xxxxxxx
--------------------------------
Title: Director
THE BANK OF NOVA SCOTIA
as Agent and on behalf of the
Instructing Group
By J.R. Heeds
--------------------------------
Title: Vice President
