EXHIBIT 10.23
THIS GUARANTEE (this "Guarantee"), dated as of 3 January 1997, made by ADT
Limited (the "Guarantor") a company organised under the laws of Bermuda of XX
Xxx 0000, Xxxx Xxxxx, Xxxxxxx 00000, XXX in favour of The Bank of Nova Scotia
(the "Bank") acting through its London branch at 00 Xxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX in respect of the obligations of ADT Finance plc (the "Principal") of
00/00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx XX00 0XX under a facility letter
(the "Facility Letter") of even date herewith provided by the Bank.
WITNESSETH as follows:
1. Facility Letter Definitions
Unless otherwise defined herein or the context otherwise
requires, terms used in this Guarantee have the meanings provided in the
Facility Letter.
2. The Principal's Obligations
In this Guarantee the expression "the Principal's Obligations"
means all monies now or at any time hereafter becoming due or owing by the
Principal to the Bank under or pursuant to the Facility Letter.
3. Guarantee
3.1. In consideration of the Bank entering into the Facility
Letter, the Guarantor hereby guarantees to the Bank, forthwith on
demand being made in writing by the Bank on the Guarantor, the
payment and discharge of the Principal's Obligations.
3.2. In the event of, and notwithstanding, the commencement of
winding up of the Principal, this Guarantee shall extend to and be in
respect of all monies and liabilities which would have been owing or
have been incurred by the Principal to the Bank if such event had
occurred at the time when the Bank makes demand hereunder.
4. Indemnity
For the same consideration the Guarantor hereby agrees as a
primary obligor to indemnify the Bank against any loss which the Bank may
incur in the event of the whole or any part of the Principal's Obligations
being invalid or being or becoming irrecoverable, unenforceable or void or
being avoided for any reason whatsoever, irrespective of whether such reason
was or ought to have been known to the Bank or its officers, employees, agents
or professional advisers. The amount of such loss shall be the amount which
the Bank would otherwise have been entitled to recover from the Principal.
5. Continuing Security
The Guarantor shall not be entitled to determine this Guarantee
by notice and until the Principal's Obligations shall have been paid or
discharged in full, this Guarantee shall be a continuing security for all the
Principal's Obligations and shall not be discharged by any intermediate
discharge or payment of or on account of the Principal's Obligations or any of
them or any settlement of accounts between the Bank and the Principal or any
other person. No demand made by the Bank hereunder shall prejudice or
restrict the right of the Bank to make further or other demands.
6. Interest
The Guarantor shall pay interest on any amount for the time
being due from the Guarantor to the Bank under this Guarantee from the date of
a demand for payment hereunder until payment in full, at the rate (as well
after as before judgment) calculated in accordance with Clause 7(b) of the
Facility Letter.
7. Representations
The Guarantor makes the representations and warranties set out
in Clauses 7.1 ad 7.2 and acknowledges that the Bank has entered into
this Guarantee in reliance on those representations and warranties.
7.1. The obligations to be assumed by the Guarantor in this
Guarantee are legal and valid obligations binding on the Guarantor in
accordance with the terms hereof.
7.2. The obligations of the Guarantor under this Guarantee rank at
least pari passu with its obligations under the guarantee dated 23
August 1995 (in respect of the credit agreement dated 23 August 1995
between ADT Operations, Inc. as borrower and the Lenders as defined
therein) and any guarantee which may be issued by the Guarantor in
respect of any facility which may replace such credit agreement.
8. Opening of New Accounts
If for any reason this Guarantee ceases to be a continuing
security, the Bank may either continue any then existing account or open one
or more fresh accounts for the Principal, but in either case the obligations
of the Guarantor under this Guarantee shall remain unaffected by, and be
computed without regard to, any payment into or out of any such account after
this Guarantee has ceased to be a continuing security.
9. Dealings with the Principal
The liability of the Guarantor hereunder shall not be impaired,
discharged or otherwise affected by (i) any determination, variation,
discharge, release or increase of, or composition or arrangement relating to
the Principal's Obligations or of or relating to any agreement relating
thereto; or (ii) the grant by the Bank to the Principal or any other person
of any time or indulgence; or (iii) any dealing, exchange, renewal, variation,
release, discharge, compositions, arrangements, modification or abstaining
from perfecting or enforcing or claiming in relation to any securities,
guarantees or rights which the Bank may now or hereafter have in respect to
the Principal's Obligations; or (iv) the Bank's obtaining or failure to obtain
any other guarantee or security (whether contemporaneously with this Guarantee
or otherwise); or (v) any other act, event or omission which but for this
provision would or might operate to impair, discharge or otherwise affect the
obligations of the Guarantor hereunder.
10. Discharges and Releases Avoided
Any discharge or release by the Bank of the Guarantor in
respect of liabilities under this Guarantee or of any security relating
thereto, notwithstanding that this Guarantee may have been returned to the
Guarantor and any agreement between the Guarantor and the Bank concerning any
such liabilities or security shall be void, and deemed to have been given or
entered into by the Bank on the express condition that it would be void, if
any act or thing in reliance upon or on the faith of which the Bank gave such
discharge or release or entered into that agreement shall be subsequently
avoided by or in pursuance of any provision or rule of law.
11. Claims of the Guarantor against the Principal
11.1. Until the Principal's Obligations shall have been paid or
discharged in full, and notwithstanding any payment of monies
recoverable from the Guarantor hereunder or any purported release or
cancellation of this Guarantee, the Guarantor will not by virtue of
such payment or by any other means or on any other ground, except with
the prior written consent of the Bank or as provided below (i) make or
enforce any claim (whether by way of set-off, counterclaim or
otherwise) or right against the Principal or prove in competition with
the Bank, whether in respect of any payment hereunder made by the
Guarantor or otherwise (other than in the ordinary course of
business); or (ii) be entitled to claim, or have the benefit of, any
set-off, counterclaim or proof against, or dividend, composition or
payment by, the Principal; or (iii) be entitled to claim or otherwise
obtain the benefit (by way of subrogation or otherwise) of any
security or guarantee or indemnity at any time held by the Bank for or
in respect of any of the Principal's Obligations; or (iv) claim or
enforce any right of contribution against any co-surety; provided that
the restrictions contained in (i), (ii) and (iv) above shall apply
only after demand has been made hereunder, but shall apply
irrespective of when the claim for contribution or indemnity under
this Clause 11.1 is made.
11.2. If the Guarantor shall have any right of proof in the
winding-up of the Principal which does not derive from a payment made
hereunder, the Guarantor shall not (except where the Bank otherwise
requires) exercise that right.
11.3. If while the Guarantor shall remain under liability to the
Bank hereunder, any monies or other property or assets shall be
received or recovered by the Guarantor in pursuance of any of the
foregoing provisions of this Clause or in breach of any such
provisions, such monies or other property or assets shall (save as
provided herein) be held upon trust to pay or transfer the same to the
Bank to the extent of such liability.
11.4. The Bank shall not be obliged before exercising any of the
rights, powers or remedies conferred upon it in respect of the Guarantor by
any of the Finance Documents or by law:
(a) to make any demand of the Principal or any other Group
Guarantor;
(b) to take any action or obtain judgment in any court against
the Principal or any other Group Guarantor;
(c) to make or file any claim or proof in a winding-up or
dissolution of the Principal or any other Group Guarantor; or
(d) to enforce or seek to enforce any other security taken in
respect of any of the obligations of the Principal or any
other Group Guarantor under any of the Finance Documents;
save that notice of non-payment shall first be given to the Principal provided
that if no such notice is given to the Principal prior to the exercise of such
rights, powers or remedies, that does not preclude the Bank giving notice to
the Principal and thereafter exercising such rights, powers or remedies.
12. Set-Off
Without prejudice to and in addition to any other remedy of
set-off, combination or consolidation of accounts which the Bank may have, at
any time after a demand hereunder the Bank shall be entitled without prior
notice to the Guarantor, if at the relevant time the Principal's Obligations
and all other monies payable hereunder shall not have been fully paid or
otherwise discharged, to set off the liability of the Guarantor hereunder
against any monies in whatsoever currency standing to the credit of the
Guarantor in any current or other account with the Bank and to combine any
such account with any other such account.
13. Suspense Account
The Bank may at any time place and keep to the credit of a
separate suspense account any monies received under this Guarantee for so long
and in such manner as the Bank may determine without any obligation to apply
such monies or any part of them in or towards the discharge of the Principal's
Obligations. In the event of any proceedings in or analogous to liquidation,
composition or arrangement of or concerning the Principal, the Bank may
notwithstanding any payment made under this Guarantee approve and agree to
accept any dividend or composition in respect of the whole or any part of the
Principal's Obligations in the same manner as if this Guarantee had not been
given. If and when the aggregate of all monies held on suspense or impersonal
account exceeds the aggregate amount payable by the Principal under the
Finance Documents to the Bank, the Bank shall, as soon as practicable
thereafter, apply any amount held in such suspense or impersonal account in
satisfaction of the amounts payable by the Principal and the Group Guarantors
under the Finance Documents.
14. Other Means of Payment
The Bank may make demand under this Guarantee (i) before making
demand on any other surety or enforcing any other security for the Principal's
Obligations and (ii) for the payment of the ultimate balance after resorting
to other means of payment or for the balance due at any time notwithstanding
that the Bank has not resorted to other means of payment (in which case the
Guarantor shall not be entitled to any benefit from such other means of
payment so long as any of the Principal's Obligations remain outstanding).
15. Accounts Settled
Any accounts settled or stated by or between the Principal and
the Bank may be adduced by the Bank and shall be accepted by the Guarantor as
conclusive evidence (save in the absence of manifest error) of the amount
thereby appearing as due from the Principal to the Bank.
16. Payment Free of Deduction
The Guarantor will pay all monies due under this Guarantee free
and clear of and without deduction for or on account of either any set-off or
counterclaim or any and all present or future taxes, levies, imposts, charges,
fees, deductions or withholdings other than as required by law. If any sums
payable hereunder shall be or become subject to any deduction or withholding
on account of tax (other than a tax imposed on and calculated by reference to
our overall net income), the amount of such payments shall be increased so that
the net amount received by the Bank shall equal the amount which, but for such
deduction or withholding, would have been received by the Bank hereunder.
17. Effectiveness of Security
This Guarantee is in addition to and is not prejudiced, or to
be prejudiced, by any other guarantee or security for the Principal's
Obligations or any of them which is/are now or may hereafter be held by the
Bank whether from the Guarantor or otherwise.
18. Currency Conversions
18.1. The Guarantor's liability hereunder shall be to pay the Bank
the full amount of the Principal's Obligations in each currency in
which they are for the time being denominated. Provided that if and
to the extent that the Guarantor shall not pay such amount in such
currency the Bank may accept payment of all or part of such amount in
any other currency and/or require the Guarantor, in substitution for
its liability to pay such amount in such currency, to pay an amount in
sterling which is equivalent to the amount of such currency remaining
unpaid (and in either case the provisions of Clause 18.2 below shall
apply).
18.2. The equivalent on any day in one currency of any amount
denominated in another currency shall be an amount in the first
currency equal to the amount which the Bank would have received if the
Bank had on such day (or, if such day shall not be a business day, on
the next succeeding business day) made a purchase of the first
currency with such amount of such other currency at the then
prevailing spot rate of exchange of the Bank less all costs, charges
and expenses normally incurred by the Bank or on its behalf in
connection with such a purchase.
19. Costs and Expenses
The Guarantor shall pay all legal and other costs and expenses
(together with any value added tax or other taxes in respect thereof) incurred
by the Bank in connection with the preservation of rights under and
enforcement of this Guarantee.
20. Provisions Severable
Each of the provisions contained in this Guarantee shall be
severable and distinct from one another and if any one or more of such
provisions is now or hereafter becomes invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions of this
Guarantee shall not in any way be affected, prejudiced or impaired thereby.
21. Benefit and Interpretation of Guarantee
21.1. The Bank shall not assign the whole or any part of the benefit
of this Guarantee without our prior written consent such consent not be
unreasonably withheld or delayed. The expression "the Bank" wherever
used herein shall be deemed to include the assignees and other
successors of the Bank, who shall be entitled to enforce and proceed
upon this Guarantee in the same manner as if named herein. The Bank
shall be entitled to impart any information concerning the Guarantor to
any such assignee or other successor or any participant or proposed
assignee, successor or participant provided that we shall obtain from
the person to whom such information is provided an undertaking to keep
such information secret and confidential.
21.2. Any reference in this Guarantee to a "person" shall be
construed as a reference to any person, firm, company, corporation,
government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two
or more of the foregoing.
22. Notices and Demands
Any notice or demand to be given or made by the Bank hereunder
may be given to or made of the Guarantor by fax or by letter at its registered
office or principal place of business for the time being. Any such notice or
demand shall be deemed to be given when despatched (in the case of a
communication made by fax) or (in the case of any communication made by
letter) when left at that address or ( as the case may be) ten days after
being deposited in the post postage prepaid in an envelope addressed to it
at that address.
23. Law and Jurisdiction
23.1. This Guarantee shall be governed by, and construed in
accordance with, English law.
23.2. The Guarantor hereby agrees for the benefit of the Bank, and
without prejudice to the right of the Bank to take proceedings in
relation hereto before any other court of competent jurisdiction, that
the courts of England shall have jurisdiction to hear and determine
any suit, action or proceeding that may arise out of or in connection
with this Guarantee and for such purposes irrevocably submits to the
jurisdiction of such courts.
AS WITNESS the hands of the duly authorised representatives of
the parties hereto the day and year first before written.
The Guarantor
ADT LIMITED
By: Xxxxxxx X. Xxxxxx
