EXHIBIT 10.19
[CONFORMED COPY]
SUBSIDIARY GUARANTOR GUARANTY
THIS SUBSIDIARY GUARANTOR GUARANTY (together with all amendments
and other modifications made from time to time, this "Guaranty"), dated as of
January 9, 1997, made by each Person (such capitalized term and all other
capitalized terms not otherwise defined herein to have the meanings provided
for in Article I) identified on the signature pages hereto and each Additional
Subsidiary Guarantor (collectively, the "Subsidiary Guarantors"), in favor of
each of the Lender Parties.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of January 9,
1997 (together with all amendments and other modifications, if any, from time
to time thereafter made thereto, the "Credit Agreement"), among ADT
Operations, Inc., a Delaware corporation (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 have extended Commitments to
make Credit Extensions to or on behalf of the Borrower;
WHEREAS, as a condition precedent to the occurrence of the Closing
Date under the Credit Agreement, each Subsidiary Guarantor is required to
execute and deliver this Guaranty;
WHEREAS, each Subsidiary Guarantor has duly authorized the
execution, delivery and performance of this Guaranty; and
WHEREAS, it is in the best interests of each Subsidiary Guarantor
to execute this Guaranty inasmuch as each Subsidiary Guarantor will derive
substantial direct and indirect benefits from the Credit Extensions made from
time to time to or on behalf of the Borrower by the Lenders;
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, each Subsidiary Guarantor agrees, for the
benefit of each Lender Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Agent" is defined in the first recital.
"Borrower" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guaranty" is defined in the preamble.
"Lender" is defined in the first recital.
"Lender Party" means, as the context may require, any Lender, any
Issuer or the Agent and each of their respective successors, transferees and
assigns.
"Lenders" is defined in the first recital.
"Other Taxes" is defined in clause (b) of Section 2.7.
"Scotiabank" is defined in the first recital.
"Subsidiary Guarantor" is defined in the preamble.
"Taxes" is defined in clause (a) of Section 2.7.
"U.C.C." means the Uniform Commercial Code as in effect in the
State of New York.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in this Guaranty,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. Each Subsidiary Guarantor hereby
absolutely, unconditionally and irrevocably, jointly and severally,
(a) guarantees the full and punctual payment when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of the
Borrower and each other Obligor now or hereafter existing, whether
for principal, interest, Reimbursement Obligations, fees, expenses
or otherwise (including all such amounts which would become due
but for the operation of the automatic stay under Section 362(a)
of the United States Bankruptcy Code, 11 U.S.C. Section 362(a),
and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. Section 502(b) and Section
506(b)); and
(b) indemnifies and holds harmless each Lender Party and
each holder of a Note for any and all costs and expenses (including
reasonable attorney's fees and expenses) incurred by such Lender
Party or such holder, as the case may be, in enforcing any rights
under this Guaranty;
provided, however, that each Subsidiary Guarantor shall be liable under this
Guaranty for the maximum amount of such liability that can be hereby incurred
without rendering this Guaranty, as it relates to such Subsidiary Guarantor,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This Guaranty constitutes a
guaranty of payment when due and not of collection, and each Subsidiary
Guarantor specifically agrees that it shall not be necessary or required that
any Lender Party or any holder of any Note exercise any right, assert any
claim or demand or enforce any remedy whatsoever against the Borrower or any
other Obligor (or any other Person) before or as a condition to the
obligations of such Subsidiary Guarantor hereunder.
SECTION 2.2. Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of the
Borrower and each other Obligor have been paid in full, all obligations of each
Subsidiary Guarantor hereunder shall have been paid in full and all
Commitments shall have terminated. Each Subsidiary Guarantor guarantees that
the Obligations of the Borrower and each other Obligor and their respective
Subsidiaries will be paid strictly in accordance with the terms of the Credit
Agreement and each other Loan Document under which they arise, without regard
(to the fullest extent permitted under applicable law) to any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Lender Party or any holder of any Note with respect
thereto (and each Subsidiary Guarantor hereby waives to the fullest extent it
may do so any right or rights it may have under any such law, regulation or
order). Without limiting the generality of the foregoing, the liability of
each Subsidiary Guarantor under this Guaranty shall be absolute, unconditional
and irrevocable irrespective of:
(a) any lack of genuineness, validity, legality or
enforceability of the Credit Agreement or any other Loan Document
(other than, in respect of such Subsidiary Guarantor, this
Guaranty) or of any of the Obligations (other than the Obligations
of such Subsidiary Guarantor hereunder);
(b) the failure of any Lender Party or any holder of any
Note
(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower, any other Obligor or
any other Person (including any other Subsidiary Guarantor)
under the provisions of the Credit Agreement or any other
Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor (including any other Subsidiary Guarantor) of, or
collateral securing, any Obligations of the Borrower or any
other Obligor;
(c) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations of the
Borrower or any other Obligor (other than such Subsidiary
Guarantor), or any other extension, compromise or renewal of any
Obligation of the Borrower or any other Obligor (other than such
Subsidiary Guarantor);
(d) any reduction, limitation, impairment or termination of
the Obligations of the Borrower or any other Obligor (other than
such Subsidiary Guarantor) for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall
not be subject to (and each Subsidiary Guarantor hereby waives any
right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting,
the Obligations of the Borrower, any other Obligor (other than
such Subsidiary Guarantor) or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the
terms of the Credit Agreement or any other Loan Document (other
than, in respect of such Subsidiary Guarantor, this Guaranty);
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release of or addition to, or consent to departure from, any other
guaranty (including the ADT Limited Guaranty), held by any Lender
Party or any holder of any Note securing any of the Obligations of
the Borrower or any other Obligor; or
(g) any other circumstances which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, the Borrower, any other Obligor, any surety or any
other guarantor (or any other Guarantor).
SECTION 2.3. Stay of Acceleration, Reinstatement, etc. Each
Subsidiary Guarantor agrees that, if acceleration of the time for payment of
any amount payable by the Borrower under the Credit Agreement, the Notes or
any other Loan Document or of compliance by the Borrower with its obligations
under Section 4.7 of the Credit Agreement is, in either case, stayed upon the
occurrence with respect to the Borrower of any Event of Default described in
clause (b) or (d) of Section 9.1.9 of the Credit Agreement, all such amounts
and obligations otherwise subject to acceleration or compliance under the
terms of the Credit Agreement shall nonetheless be payable and performed by
such Subsidiary Guarantor hereunder forthwith on demand by the Agent made at
the request of the requisite proportion of the Lenders specified in Section
9.3 of the Credit Agreement. Each Subsidiary Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be,
if at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Lender Party or any holder of
any Note, upon the insolvency, bankruptcy or reorganization of the Borrower,
any other Obligor (other than such Subsidiary Guarantor) or otherwise, all as
though such payment had not been made.
SECTION 2.4. Waiver, etc. Each Subsidiary Guarantor hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Obligations of the Borrower or any other Obligor and this
Guaranty and any requirement that the Agent, any other Lender Party or any
holder of any Note protect, secure, perfect or insure any security interest or
Lien, or any property subject thereto, or exhaust any right or take any action
against the Borrower, any other Obligor or any other Person (including any
other guarantor and any other Guarantor) or entity or any collateral securing
the Obligations of the Borrower or any other Obligor, as the case may be.
SECTION 2.5. Subrogation. Each Subsidiary Guarantor hereby
agrees that it will not exercise any rights which it may now or hereafter
acquire against the Borrower or any other Obligor that arise from the
existence, payment, performance or enforcement of such Subsidiary Guarantor's
obligations under this Guaranty or any other Loan Document, including any
right of subrogation, reimbursement, exoneration, or indemnification, any
right to participate in any claim or remedy of the Lender Parties against the
Borrower or any other Obligor or any collateral which the Agent now has or
hereafter acquires, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including the right to take
or receive from the Borrower or any other Obligor, directly or indirectly, in
cash or other property or by set-off or in any manner, payment or security on
account of such claim or other rights, until the Obligations have been paid in
full in cash and the Commitments have been terminated. If any amount shall be
paid to such Subsidiary Guarantor in violation of the preceding sentence and
the Obligations shall not have been paid in cash in full and the Commitments
have not been terminated, such amount shall be deemed to have been paid to
such Subsidiary Guarantor for the benefit of, and held in trust for, the
Lender Parties, and shall forthwith be paid to the Lender Parties to be
credited and applied upon the Obligations, whether matured or unmatured. Each
Subsidiary Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Credit Agreement
and that the agreement set forth in this Section is knowingly made in
contemplation of such benefits.
SECTION 2.6. Successors, Transferees and Assigns; Transfers of
Notes, etc. This Guaranty shall:
(a) be binding upon each Subsidiary Guarantor and its
successors, transferees and assigns; and
(b) inure to the benefit of and be enforceable by the Agent
and each other Lender Party.
Without limiting the generality of clause (b), any Lender may assign or
otherwise transfer (in whole or in part) any Note or Loan held by it to any
other Person or entity, and such other Person or entity shall thereupon become
vested with all rights and benefits in respect thereof granted to such Lender
under any Loan Document (including this Guaranty) or otherwise, subject,
however, to the provisions of Section 11.11 and Article X of the Credit
Agreement.
SECTION 2.7. Payments Free and Clear of Taxes, etc. Each
Subsidiary Guarantor hereby agrees that:
(a) Any and all payments made by such Subsidiary Guarantor
hereunder shall be made in accordance with Section 5.6 of the
Credit Agreement free and clear of, and without deduction for, any
and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender Party or any holder of a
Note, taxes imposed on its net income and franchise taxes imposed
on it (such non-excluded items being hereinafter referred to as
"Taxes"). If any such Subsidiary Guarantor shall be required by
law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender Party or any holder of a Note
(i) the sum payable shall be increased as may be
necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section) such Lender Party or such holder, as the
case may be, receives an amount equal to the sum it would
have received had no such deductions been made,
(ii) such Subsidiary Guarantor shall make such
deductions, and
(iii) such Subsidiary Guarantor shall pay the full
amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) Such Subsidiary Guarantor shall pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made
hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Guaranty (hereinafter referred to
as "Other Taxes").
(c) Such Subsidiary Guarantor hereby indemnifies and holds
harmless each Lender Party and each of holder of a Note for the
full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction
on amounts payable under this Section) paid by such Lender Party
or such holder, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted.
(d) Without prejudice to the survival of any other
agreement of such Subsidiary Guarantor hereunder, the agreements
and obligations of such Subsidiary Guarantor contained in this
Section 2.7 shall survive the payment in full of the principal of
and interest on the Loans.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. Each Subsidiary
Guarantor hereby represents and warrants for itself unto each Lender Party as
to all matters contained in Article VII of the Credit Agreement and Article III
of the ADT Limited Guaranty, in each case insofar as applicable to such
Subsidiary Guarantor or such Subsidiary Guarantor's properties, together with
all related definitions and ancillary provisions, all of which are hereby
incorporated into this Section 3.1 as those specifically set forth herein. In
addition, each Subsidiary Guarantor hereby represents and warrants for itself
unto each Lender Party as further set forth in this Article III.
SECTION 3.1.1. Organization, etc. Such Subsidiary Guarantor and
each of its Subsidiaries is a corporation duly organized and validly existing
and in good standing under the laws of the State of its incorporation, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the nature of its business or the location of its
assets requires such qualification and where the failure to so qualify or be
in good standing would reasonably be expected to have a material adverse
effect on the business, results of operations, financial condition or
prospects of the Borrower and its Subsidiaries taken as a whole. Such
Subsidiary Guarantor and each of its Subsidiaries has full power and authority
and holds all requisite governmental licenses, permits and other approvals (i)
to own and hold under lease its property and to conduct its business
substantially as currently conducted by it, except where failure to hold such
licenses, permits and other approvals would not reasonably be expected to have
a material adverse effect on the business, results of operations, financial
condition or prospects of the Borrower and its Subsidiaries taken as a whole
and (ii) to enter into and perform its obligations under this Guaranty and
each other Loan Document to which it is a party.
SECTION 3.1.2. Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by such Subsidiary Guarantor of this
Guaranty and each other Loan Document executed or to be executed by it and
such Subsidiary Guarantor's participation in the consummation of the
Transaction are within such Subsidiary Guarantor's corporate powers, have been
duly authorized by all necessary corporate action, and do not
(a) contravene such Subsidiary Guarantor's Organic
Documents;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting such Subsidiary Guarantor in any manner that could
reasonably be expected (i) to have a material adverse effect on
the business, results of operations, financial condition or
prospects of the Borrower and its Subsidiaries taken as a whole,
(ii) to impair the ability of any Lender, any Issuer or the Agent
to enforce the Obligations or (iii) to subject any Lender, any
Issuer or the Agent to any liability; or
(c) result in, or require the creation or imposition of,
any Lien on any of such Subsidiary Guarantor's properties.
SECTION 3.1.3. Government Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other Person is required for
the due execution, delivery or performance by such Subsidiary Guarantor of
this Guaranty or any other Loan Document to which it is a party. No
Subsidiary Guarantor is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.1.4. Validity, etc. This Guaranty constitutes, and each
other Loan Document executed by such Subsidiary Guarantor will, on the due
execution and delivery thereof, constitute, the legal, valid and binding
obligations of such Subsidiary Guarantor enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect affecting enforceability
of creditors' rights generally and to general principles of equity.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. Affirmative Covenants. Each Subsidiary Guarantor
covenants and agrees that, until the Covenant Termination Date, such
Subsidiary Guarantor will perform, comply with and be bound by all the
agreements, covenants and obligations contained in Article VIII of the Credit
Agreement and Article IV of the ADT Limited Guaranty applicable to such
Subsidiary Guarantor or such Subsidiary Guarantor's properties. Each such
agreement, covenant and obligation contained in each such Article and all
related definitions and ancillary provisions are hereby incorporated into this
Guaranty as though specifically set forth herein.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Loan Document. This Guaranty is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof, including, without
limitation, Article XI thereof.
SECTION 5.2. Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.6, this
Guaranty shall be binding upon each Subsidiary Guarantor and its successors,
transferees and assigns and shall inure to the benefit of and be enforceable by
each Lender Party and each holder of a Note and their respective successors,
transferees and assigns (to the full extent provided pursuant to Section 2.6);
provided, however, that no Subsidiary Guarantor may assign any of its
obligations hereunder without the prior written consent of all Lenders.
SECTION 5.3. Amendments, etc. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by any Subsidiary
Guarantor herefrom, shall in any event be effective unless the same shall be in
writing and signed by each Subsidiary Guarantor and the Agent, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 5.4. Addresses for Notices to the Subsidiary Guarantor.
All notices and other communications hereunder to any Subsidiary Guarantor
shall be in writing or by facsimile and addressed, delivered or transmitted to
it in care of the Borrower at the address and facsimile number and in the
manner provided for in Section 11.2 of the Credit Agreement.
SECTION 5.5. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.2 and Section 2.4, no failure on the part of any
Lender Party or any holder of a Note to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 5.6. Headings. The various headings used in this Guaranty
are for convenience of reference only and shall not affect the construction of
this Guaranty.
SECTION 5.7. Setoff. In addition to, and not in limitation of,
any rights of any Lender Party or any holder of a Note under applicable law,
each Lender Party and each such holder shall, upon the occurrence of any
Event of Default, to the fullest extent permitted under applicable law, have
the right to appropriate and apply to the payment of the obligations of any
Subsidiary Guarantor owing to it hereunder, whether or not then due, any and
all balances, credits, deposits, accounts or moneys of such Subsidiary
Guarantor then or thereafter maintained with such Lender Party or such holder;
provided, however, that any such appropriation and application shall be
subject to the provisions of Section 5.8 of the Credit Agreement.
SECTION 5.8. Severability. Wherever possible, each provision of
this Guaranty shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Guaranty.
SECTION 5.9. Execution in Counterparts. This Guaranty 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 5.10. Governing Law; Entire Agreement. THIS GUARANTY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS
OF THE STATE OF NEW YORK. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL,
WITH RESPECT THERETO.
SECTION 5.11. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES OR ANY SUBSIDIARY GUARANTOR
SHALL BE BROUGHT AND MAINTAINED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH SUBSIDIARY GUARANTOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. EACH SUBSIDIARY GUARANTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH
SUBSIDIARY GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY SUBSIDIARY GUARANTOR HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, SUCH SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS GUARANTY.
SECTION 5.12. Waiver of Jury Trial. THE LENDER PARTIES AND EACH
SUBSIDIARY GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE LENDER PARTIES OR ANY SUBSIDIARY GUARANTOR. EACH SUBSIDIARY
GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDER PARTIES ENTERING INTO THE CREDIT AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT.
SECTION 5.13. Additional Subsidiary Guarantors. Upon
execution and delivery by the Agent and any other Person (each such Person
being an "Additional Subsidiary Guarantor") of an instrument in the form of
Annex I attached hereto, such Additional Subsidiary Guarantor shall become a
Subsidiary Guarantor hereunder with the same force and effect as if originally
named as a Subsidiary Guarantor herein. The execution and delivery of any
such instrument shall not require the consent of any Subsidiary Guarantor
hereunder. The rights and obligations of each Subsidiary Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any
Additional Subsidiary Guarantor as a party to this Guaranty.
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IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
ADT GENERAL HOLDINGS, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------
Title: Treasurer
ADT SECURITY SERVICES, INC.
(formerly known as ADT
SECURITY SYSTEMS, INC.)
By: /s/ Xxx X. Xxxxxx
----------------------------
Title: Treasurer
ADT SECURITY SYSTEMS,
WEST, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------
Title: Treasurer
ADT AUTOMOTIVE, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Title: Senior Vice President
ADT AUTOMOTIVE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Title: Vice President
AA PROPERTY HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Title: President
ADT INVESTMENTS, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------
Title: Treasurer
AAAA DEALERS SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Title: President
ADT BUSINESS HOLDINGS, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------
Title: Treasurer
ADT PROPERTY HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Title: Secretary
ADT SECURITY SYSTEMS
MANUFACTURING, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------
Title: Treasurer
MID-ATLANTIC SECURITY, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------
Title: Treasurer
ADT AUTOMOTIVE SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Title: President
AUCTION TRANSPORT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title: President
BRITISH CAR AUCTIONS, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------
Title: Treasurer
CCTC INTERNATIONAL, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------
Title: Treasurer
ADT SPECIALTY AUCTIONS, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Title: President
FLYING LION INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Title: President
TRI-CITY AUTO AUCTION, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Title: President
ADT SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Title: President
Acknowledged and Accepted:
THE BANK OF NOVA SCOTIA,
as Agent
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Title: Relationship Manager
ANNEX I
to
Subsidiary Guarantor Guaranty
SUBSIDIARY GUARANTOR GUARANTY SUPPLEMENT
THIS SUBSIDIARY GUARANTOR GUARANTY SUPPLEMENT (this "Supplement"),
dated as of _____________, 199_, to the Subsidiary Guarantor Guaranty, dated
as of January 9, 1997 (as amended or otherwise modified through the date
hereof, the "Subsidiary Guaranty"), made by each Person identified on the
signature pages thereto, certain other Persons who subsequently became a party
thereto by executing an agreement in substantially the form hereof (each an
"Additional Subsidiary Guarantor" and, together with each Person identified on
the signature pages of the Guaranty, the "Subsidiary Guarantors"), in favor of
The Bank of Nova Scotia ("Scotiabank"), as documentation agent (the
"Documentation Agent") for each of the Lender Parties (such capitalized term
and all other capitalized terms used in this Supplement without being defined
shall have the meaning provided for in the Subsidiary Guaranty).
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of January 9,
1997 (together with all amendments and other modifications, if any, from time
to time made thereto, the "Credit Agreement"), among ADT Operations, Inc., a
Delaware corporation (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 have extended Commitments to make Credit Extensions to or
on behalf of the Borrower;
WHEREAS, it is in the best interests of the undersigned (the "New
Additional Subsidiary Guarantor") to execute this Supplement inasmuch as the
New Additional Subsidiary Guarantor will derive substantial direct and indirect
benefits from the Credit Extensions made by the Lenders pursuant to the Credit
Agreement; and
WHEREAS, the New Additional Subsidiary Guarantor desires to become
an Additional Subsidiary Guarantor under the Subsidiary Guaranty pursuant to
Section 5.13 thereof;
NOW, THEREFORE, for good and valuable consideration the receipt
of which is hereby acknowledged, the New Additional Subsidiary Guarantor
agrees, for the benefit of each Lender Party, as follows:
SECTION 1. Additional Subsidiary Guarantor. In accordance with
Section 5.13 of the Subsidiary Guaranty, the New Additional Subsidiary
Guarantor by its signature hereto shall become a Subsidiary Guarantor under
the Subsidiary Guaranty with the same force and effect as if originally named
as a Subsidiary Guarantor therein, and each reference to a "Subsidiary
Guarantor" or an "Additional Subsidiary Guarantor" in the Subsidiary Guaranty
shall be deemed to include the New Additional Subsidiary Guarantor. The New
Additional Subsidiary Guarantor hereby agrees to all the terms and provisions
of the Subsidiary Guaranty applicable to it as an Additional Subsidiary
Guarantor thereunder.
SECTION 2. Guaranty. Without limiting the terms of Section 1, the
New Additional Subsidiary Guarantor hereby absolutely, unconditionally and
irrevocably, jointly and severally,
(a) guarantees the full and punctual payment when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of the
Borrower and each other Obligor, whether for principal, interest,
fees, expenses or otherwise (including all such amounts which
would become due but for the operation of the automatic stay under
Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.
Section 362(a), and the operation of Sections 502(b) and 506(b) of
the United States Bankruptcy Code, 11 U.S.C. Section 502(b) and
Section 506(b)); and
(b) indemnifies and holds harmless each Lender Party and
each holder of a Note for any and all costs and expenses (including
reasonable attorney's fees and expenses) incurred by such Lender
Party or such holder, as the case may be, in enforcing any rights
under this Supplement or the Subsidiary Guaranty;
provided, however, that the New Additional Subsidiary Guarantor shall be
liable under this Supplement and the Subsidiary Guaranty for the maximum
amount of such liability that can be incurred without rendering this Supplement
and the Subsidiary Guaranty, as it relates to the New Additional Subsidiary
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer, and not for any greater amount. This Supplement and the
Subsidiary Guaranty constitute a guaranty of payment when due and not of
collection, and the New Additional Subsidiary Guarantor specifically agrees
that it shall not be necessary or required that any Lender Party or any holder
of any Note exercise any right, assert any claim or demand or enforce any
remedy whatsoever against the Borrower or any other Obligor (or any other
Person) before or as a condition to the obligations of the New Additional
Subsidiary Guarantor under this Supplement or the Subsidiary Guaranty.
SECTION 3. Warranties, etc. The New Additional Subsidiary
Guarantor hereby represents and warrants unto each Lender Party, as of the
date hereof, as follows:
(a) each of the representations and warranties set forth in
Article III of the Subsidiary Guaranty as applied to such New
Additional Subsidiary Guarantor are true and correct; and
(b) the execution, delivery and performance by the New
Additional Subsidiary Guarantor of this Supplement are within its
corporate powers, have been duly authorized by all necessary
corporate action and constitute the legal, valid and binding
obligation of the New Additional Subsidiary Guarantor enforceable
against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
from time to time in effect affecting enforceability of creditors,
rights generally and to general principles of equity.
SECTION 4. Subsidiary Guaranty Remains in Full Force and Effect.
Except as expressly supplemented hereby, the Subsidiary Guaranty shall remain
in full force and effect in accordance with its terms.
SECTION 5. Governing Law. THIS SUPPLEMENT SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
SECTION 6. Severability. Wherever possible each provision of this
Supplement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Supplement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Supplement.
SECTION 7. Execution in Counterparts. This Supplement 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 but one and the same
agreement.
SECTION 8. Consent to Jurisdiction. If the New Additional
Subsidiary Guarantor is organized under the laws of a jurisdiction outside of
the United States, such New Additional Subsidiary Guarantor shall consent to
the jurisdiction of New York courts (including the appointment of an agent to
receive summons and complaints in connection with any litigation) on terms
reasonably satisfactory to the Agent.
SECTION 9. Expenses. Without limiting the provisions of the
Credit Agreement, the New Additional Subsidiary Guarantor agrees to reimburse
the Agent for all reasonable out-of-pocket expenses incurred in connection with
this Supplement, including the reasonable fees and expenses of counsel of the
Agent.
SECTION 10. Notices. The address and facsimile number for all
notices to be delivered to the New Additional Subsidiary Guarantor in
connection with the Subsidiary Guaranty is as set forth in Section 5.4 of the
Subsidiary Guaranty.
SECTION 11. Subsidiary Guaranty. This Supplement hereby
incorporates by reference the provisions of the Subsidiary Guaranty, which
provisions are deemed to be a part hereof, and this Supplement shall be deemed
to be a part of the Subsidiary Guaranty.
IN WITNESS WHEREOF, the New Additional Subsidiary Guarantor
has duly executed this Supplement to the Subsidiary Guaranty as of the day and
year first above written.
[NAME OF NEW ADDITIONAL
SUBSIDIARY GUARANTOR]
By
----------------------------
Title:
Acknowledged and Accepted:
THE BANK OF NOVA SCOTIA,
as Agent
By
----------------------------
Title:
