EXHIBIT 10.6
ADT LIMITED GUARANTY WAIVER AND CONSENT
THIS ADT LIMITED GUARANTY WAIVER AND CONSENT (this "Waiver and
Consent"), dated as of June 27, 1997, between ADT LIMITED, a company organized
under the laws of Bermuda ("ADT Limited"), and the Agent (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of January 9,
1997 and as amended and restated as of April 14, 1997 (the "Credit Agreement"),
among ADT Operations, Inc., a company organized under the laws of Delaware
(the "Borrower"), the financial institutions as are or may become parties
thereto (collectively, the "Lenders"), and The Bank of Nova Scotia
("Scotiabank"), individually and as agent (the "Agent") for the Lenders, the
Lenders extend Commitments to make Credit Extensions to the Borrower; and
WHEREAS, in connection with the Credit Agreement, ADT Limited
executed and delivered in favor of the Agent and the Lenders the Guaranty dated
as of January 9, 1997 (as heretofore amended or otherwise modified, the "ADT
Limited Guaranty"); and
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 March 17,
1997, among ADT Limited, Apache and Tyco (the "Merger"); and
WHEREAS, concurrent with the Merger, the Borrower intends to
make a tender offer for all of its Senior Notes and Senior Subordinated Notes
while simultaneously soliciting the consent of the holders of the Senior Notes
and Senior Subordinated Notes to amend, among other things, certain covenants
set forth in the Senior Note Indenture and the Senior Subordinated Note
Indenture pursuant to, and in accordance with, the Offer to Purchase and
Solicitation of Consents dated June 4, 1997 (collectively, the "Debt Tender");
and
WHEREAS, ADT Limited has requested the Required Lenders to
grant a limited waiver and consent with respect to Sections 4.2.5, 4.2.6,
4.2.9, 4.2.11 and 4.2.14 of the ADT Limited Guaranty in order to permit (i)
ADT Limited's equity interest in Apache and Tyco, (ii) the repurchase of the
Senior Notes and the Senior Subordinated Notes by the Borrower, (iii) the
Merger, (iv) the amendments to the Senior Note Indenture and the Senior
Subordinated Note Indenture and (v) a change in its fiscal year to the twelve
consecutive calendar months ending June 30; and
WHEREAS, ADT Limited has requested the Required Lenders to
consent and agree that, until September 30, 1997, Apache, Tyco and the
Subsidiaries of Tyco on the date hereof or formed after the date hereof
(Apache, Tyco and such Subsidiaries, collectively, the "Tyco Subsidiaries") be
deemed to be neither Subsidiaries nor Affiliates of ADT Limited for purposes
of the provisions set forth in the ADT Limited Guaranty (other than Section
3.10, Section 4.1.1 (as to the payment of taxes) and Section 4.2.12 thereof);
WHEREAS, the Required Lenders are willing to consent to such
requests, on the terms and subject to the conditions of this Waiver and
Consent;
NOW, THEREFORE, for good and valuable consideration the receipt
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein or the context otherwise
requires, terms for which meanings are provided in the ADT Limited Guaranty
(including by reference to the Credit Agreement) shall have such meanings when
used in this Waiver and Consent.
ARTICLE II
LIMITED WAIVER AND CONSENT
On the terms and subject to the conditions set forth herein and
in reliance on the representations and warranties of ADT Limited herein
contained, the Agent and the Required Lenders hereby
(a) waive the restrictions set forth in
(i) Section 4.2.5 of the ADT Limited Guaranty to the extent
necessary to permit ADT Limited's equity interest in
apache and Tyco,
(ii) Sections 4.2.6 and 4.2.11 of the ADT Limited Guaranty to
the extent necessary to permit the Debt Tender,
(iii) Section 4.2.9 of the ADT Limited Guaranty to the extent
necessary to permit the Merger, and
(iv) Section 4.2.14 of the ADT Limited Guaranty to the extent
necessary to permit ADT Limited and its Subsidiaries to
change their Fiscal Year to the twelve consecutive calendar
months ending on June 30 (it being acknowledged that
reverences to a specified Fiscal Year in the ADT Limited
Guaranty, the Credit Agreement or any other Loan Document
shall continue to mean the twelve consecutive calendar
months ending on December 31 of such specified Fiscal Year);
and
(b) consent and agree that, until September 30, 1997, the Tyco
Subsidiaries shall be deemed to be neither Subsidiaries nor
Affiliates of ADT Limited for purposes of the provisions set forth
in the ADT Limited Guaranty (other than Section 3.10, Section
4.1.1 (as to payment of taxes) and Section 4.2.12 thereof).
The foregoing waiver and consent shall be limited precisely as
written and in no event shall be deemed to constitute a waiver of compliance
by ADT Limited with respect to any other term, provision or condition of the
ADT Limited Guaranty or any other Loan Document or prejudice any right or
remedy that the Agent or any Lender may now have or may have in the future
under or in connection with the ADT Limited Guaranty, any other Loan Document
or any other instrument or agreement referred to therein.
ARTICLE III
CONDITIONS PRECEDENT
This Waiver and Consent shall become effective, as of the date
hereof, upon the receipt by the Agent of counterparts hereof executed on
behalf of ADT Limited and the Required Lenders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Required Lenders to
consent to the terms of this Waiver and Consent, ADT Limited hereby reaffirms,
as of the date hereof, the representations and warranties contained in Article
III of the ADT Limited Guaranty and additionally represents and warrants unto
each Lender and the Agent that, as of the date hereof, no Default has occurred
and is continuing.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Headings. The various headings of this Waiver and
Consent are inserted for convenience only and shall not affect the meaning or
interpretation of this Waiver and Consent or any provisions hereof.
SECTION 5.2. Execution in Counterparts. This Waiver and
Consent 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 5.3. Acknowledgment of Credit Agreement Amendment and
Consent. ADT Limited hereby acknowledges the terms of Credit Agreement
Amendment No. 1 and Consent dated as of the date hereof among the Borrower and
the Required Lenders.
SECTION 5.4. Governing Law. THIS WAIVER AND CONSENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Waiver
and Consent to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
ADT LIMITED, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title:
THE BANK OF NOVA SCOTIA, as Agent
By: /s/ X.X. Xxxxx
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Title: Vice President
CONSENTED TO BY:
THE BANK OF NOVA SCOTIA,
as Lender
By: /s/ X.X. Xxxxx
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Title: Vice President
BANK OF MONTREAL
By: /s/ X.X. XxXxxxxx
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Title: Director
CIBC INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Title: Director, CIBC Wood Gundy
Securities Corp. as Agent
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Associate
FIRST UNION NATIONAL BANK
OF FLORIDA
By:
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Title:
THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By:
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Title:
MELLON BANK N.A.
By: /s/ Xxxxxxxx X. Xxxx
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Title: Assistant Vice President
MIDLAND BANK PLC, NEW
YORK BRANCH
By: /s/ J.P. Bollington
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Title: VP Multinationals
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By:
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Title:
NATIONSBANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
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Title: Senior Vice President
