EXHIBIT 10.22
[Letterhead of The Bank of Nova Scotia]
To: ADT Finance Plc
00/00 Xxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxxxx
XX00 0XX
Dear Sirs
On Demand Facility
We, The Bank of Nova Scotia, acting through its London branch at Scotia House,
00 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, are pleased to make available to you, in
contemplation of the confirmation of a Pound Sterling90,000,000 Facility
Agreement among you, ADT (U.K.) Holdings Limited and others as guarantors (the
"Permanent Facility") and as a temporary portion of the Permanent Facility
pending confirmation thereof, a sterling on demand facility on the terms set
forth in this Facility Letter.
1. Definitions and Interpretation
(a) In this letter the following terms have the meanings given to
them in this paragraph 1(a):
"Associated Costs Rate" means the rate necessary to cover any
monetary control, liquidity or reserve asset costs where applicable as
determined by us from time to time.
"Business Day" shall be construed as a reference to a day
(other than a Saturday or Sunday) on which banks generally are open for
business in London.
"Finance Documents" means (i) this Facility Letter, (ii) the
guarantees of even date herewith entered into by ADT Limited, ADT (UK)
Holdings Limited, Modern Security Systems Limited, ADT Group plc, Electric
Protection Services Limited and Automated Security (Holdings) plc in our
favour in respect of your obligations under this Facility Letter, and (iii)
any other agreement, deed, letter, certificate or statement entered into or
provided by you or any Group Guarantor pursuant to the terms thereof or
otherwise in connection therewith.
"Group Guarantors" means ADT Limited, ADT (UK) Holdings
Limited, Modern Security Systems Limited, ADT Group plc, Electric Protection
Services Limited and Automated Security (Holdings) plc, each of which has
entered into a guarantee of even date herewith in our favour in respect of
your obligations under this Facility Letter.
"LIBOR" means, in relation to any amount owed by you hereunder
on which interest for a given period is to accrue, the rate per annum
determined by us to be equal to the arithmetic mean (rounded if necessary
upwards to 5 decimal places) of the offered quotations which appear on the
relevant page (as defined in paragraph 1(b)) for such period at or about 11.00
a.m. (London time) on the first day of such period.
"Loan" means the aggregate principal amount for the time being
outstanding hereunder.
" Pound Sterling" and "sterling" denotes lawful currency of the
United Kingdom.
(b) For the purposes of the definition of "LIBOR":
(i) "relevant page" means page 3750 of the Telerate Screen
Service for the display of London Interbank Offered rates for sterling (or, if
such page or such service shall cease to be available, such other page or such
other service (as the case may be) for the purpose of displaying London
Interbank Offered Rates for such currency as we shall, after consultation with
you, select); and
(ii) if no quotation for the relevant period is displayed and
we have not selected an alternative service on which one or more such
quotations are displayed, "LIBOR" shall mean the rate at which we are offering
to prime banks in the London Interbank Market deposits in sterling and for
such period at or about 11.00 a.m. (London time) on the first day of such
period.
2. The Facility
(a) Subject to the terms of this Facility Letter, we grant to you
a sterling on demand facility in an aggregate amount of Pound
Sterling27,000,000.
(b) You shall ensure that no amount raised by you hereunder shall
be used to give financial assistance (as such term is defined in the Companies
Act 1985 or any analogous provision of any similar law applicable to any Group
Guarantor) directly or indirectly for any purpose which would be unlawful or
would prejudice in any way whatsoever the validity or enforceability of your
obligations or any of the obligations of the Group Guarantors under any of the
Finance Documents.
3. Availability of the Facility
Subject to Paragraph 4, you may drawdown the facility in one
amount by giving notice to us not later than 10.00 a.m. on the proposed date
of drawdown. Any portion of the facility which is not drawndown on such date
is cancelled.
4. Condition Precedent Documents
We will only make available to you the facility once we have
confirmed to you that we have received all of the documents listed in the
Schedule (Condition Precedent Documents) and that each is, in form and
substance, satisfactory to us. We will promptly give you notice of such
satisfaction.
5. Termination
(a) You may terminate this agreement at any time upon the
repayment of all amounts outstanding hereunder including all interest accrued
and other charges, costs and expenses.
(b) We may terminate the whole or any part of this facility by
giving you notice at any time at our discretion following which no further
advances shall be made under this facility.
6. Repayment
Notwithstanding any other provision in this Facility Letter,
upon our written demand you shall pay to us at The Bank of Nova Scotia, direct
chaps code: 30-16-61 in sterling and in immediately available, freely
transferable funds all amounts outstanding hereunder including all interest
accrued and other charges, costs and expenses. Any part of the Loan which you
repay, whether voluntarily or pursuant to our demand, cannot be drawn down
again. If notice of our demand has been received (or deemed to have been
received) by you on or prior to 9.30 a.m. on any Business Day, you shall be
obliged to pay the amount so demanded on such Business Day or if received (or
deemed received) later than 9.30 a.m., on the next succeeding Business Day.
7. Interest
(a) You shall pay interest on the Loan on the last day of each
interest period at the rate which is the sum of 0.50 per cent. per annum in
respect of such interest period, the Associated Costs Rate in respect of such
interest period and LIBOR. The duration of interest periods under this
facility shall be one month or such shorter period as may be agreed by us and
you. Other than in the case of the first interest period, each interest
period will commence on the last day of the previous interest period. If at
the end of any interest period you do not repay the Loan, then you may select
another interest period.
(b) If you fail to pay any amount when due (in respect of
principal or interest or otherwise), you shall be liable to pay interest on
such unpaid sum upon our demand. Such interest shall be calculated from the
date when such amount was due until the date of actual payment at an interest
rate as well after as before judgment equal to the sum from time to time of
2.50 per cent. per annum, the Associated Costs Rate in respect thereof at such
time and LIBOR on the first day of such periods as we may reasonably select.
(c) Computations of interest shall be made by us on the basis of a
year of 365 days and the actual number of days elapsed.
8. Undertaking
Without prejudice to Paragraph 6, you undertake to notify us
immediately in the event that any external indebtedness for borrowed money of
yourself in excess, in aggregate, of Pound Sterling10,000,000 (or its
equivalent) is not paid when due, any such indebtedness of yourself in excess,
in aggregate, of Pound Sterling10,000,000 (or its equivalent) is declared to
be or otherwise becomes due and payable prior to its specified maturity or any
creditor or creditors of yourself becomes entitled to declare any such
indebtedness of yourself in excess, in aggregate, of Pound Sterling10,000,000
(or its equivalent) due and payable prior to its specified maturity.
9. Indemnity
If any amount advanced under Paragraph 2(a) above is repaid
otherwise than on the last day of the interest period relating thereto, you
shall pay us the shortfall (if any) between (i) interest (less 0.50 pr cent.
per annum and Associated Costs Rate) which would have been payable by you on
the repaid amount for the rest of such interest period and (ii) interest on
the repaid amount if re-lent in the London Interbank Market for the rest of
such interest period.
10. Costs, Fees and Payments
(a) You shall reimburse us on demand for all reasonable expenses
(including legal fees) inclusive of value added tax incurred by us in
connection with the negotiation, preparation and execution of this Facility
Letter and for all expenses (including legal fees) inclusive of value added
tax incurred by us in contemplation of or otherwise in connection with the
enforcement, preservation or protection of any of our rights in respect
thereof.
(b) Without prejudice to anything else herein contained you shall
indemnify us on demand against any losses, premium, penalties and expenses
which we may sustain or incur as a consequence of payment of any amount
otherwise than on the due date therefor or in the manner herein prescribed.
(c) All payments made by you hereunder shall be made in sterling
and shall be paid in full without set-off or counterclaim.
11. Taxes
All payments to be made by you hereunder shall be free and
clear of and without deduction or withholding for any tax or other matter
other than as required by law; if you are required by law to make any
deduction or withholding on account of tax (other than a tax imposed on and
calculated by reference to our overall net income) or otherwise from any such
payment, the sum due from you in respect of such payment shall be increased to
the extent necessary to ensure that, after the making of such deduction or
withholding, we receive a net sum equal to the sum which we would have
received had no deduction or withholding been made.
12. No Waiver
No failure by us to exercise, nor any delay in exercising any
of our rights or remedies hereunder shall operate as a waiver of those rights
or remedies. Nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any other
right or remedy.
13. Set-Off
You hereby authorise us to apply any credit balance to which
you are entitled on any of your accounts with us in satisfaction of any sum
due to us by you but unpaid and to purchase sterling with the monies standing
to the credit of any such account if necessary to effect such application. We
shall not be obliged to exercise our rights under this clause but we shall
confirm any such application which is made by us to you in writing promptly
thereafter.
14. Currency of Account
Xxxxxxxx is the currency of account and payment for each and
every sum at any time due from you hereunder. If for any reason any sum due
from you pursuant to the terms of this letter or any order or judgment given
or made in relation hereto has to be converted from the currency (the "first
currency") in which the same is payable hereunder or under such order or
judgement into another currency ("second currency") for the purpose of (i)
making or filing a claim or proof against you, (ii) obtaining an order or
judgment in any court or other tribunal or (iii) enforcing any order or
judgment given or made in relation hereto, you shall indemnify us and hold us
harmless from and against any loss suffered as a result of any discrepancy
between (a) the rate of exchange used for such purpose to convert the sum in
question from the first currency into the second currency and (b) the rate or
rates of exchange at which we may in the ordinary course of business purchase
the first currency with the second currency upon receipt of a sum paid to us
in satisfaction, in whole or in part, of any such order, judgment, claim or
proof.
15. Assignment
We shall not assign the whole or any part of this Facility
Letter without your prior written consent (such consent not to be unreasonably
withheld or delayed). However, if at the time of such transfer or assignment,
a written demand for payment has been made pursuant to Clause 6, but such
payment has not been received within the time specified in Clause 6, no such
consent as is referred to in this Clause 15 shall be required. The
expressions "we", "us" and "our" wherever used herein shall be deemed to
include our assignees and other successors, who shall be entitled to enforce
and proceed upon this Facility Letter in the same manner as if named herein.
We shall be entitled to impart any information concerning you 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.
16. Notices and Demands
Any notice or demand to be given or made by us or you hereunder
may be given or made by fax or by letter, in the case of us to our office
detailed above and in the case of you to your registered office or principal
place of business for the time being. Any such notice or demand shall be
deemed to be received when despatched (in the case of any 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. If a notice
is received or deemed to be received after 5.00 p.m. London time, it shall be
treated as being received prior to 9.30 a.m. on the next succeeding Business
Day.
17. Law
This letter shall be governed by and construed in accordance
with the laws of England.
If you have any questions regarding any of provisions set out
above, please contact Xxxx Xxxxx who will be pleased to discuss the contents
of this letter with you further.
If the foregoing correctly reflects the agreement between you
and us, please indicate your acceptance of and agreement to the terms of this
letter by executing below a copy of this letter and returning it to us (for
the attention of Xxxx Xxxxx). When we receive the copy of this letter
executed by you, this letter shall be binding upon and inure to the benefit of
you and us and your and our respective successors.
Yours faithfully,
/s/ Xxxx Xxxxx
-----------------------
The Bank of Nova Scotia
Accepted and agreed
this 3 day of January, 1997
/s/ X.X. Xxxxxxx
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ADT Finance Plc
By: Xx. X.X. Xxxxxxx
Title:Director
SCHEDULE
Condition Precedent Documents
A. Corporate Documents
1. In relation to ADT Finance Plc and each of the Group
Guarantors:
(a) a copy, certified a true copy by a duly authorised
officer of the relevant company, of the constitutional
documents of ADT Finance Plc and each of the Group Guarantors;
(b) a copy, certified a true copy by a duly authorised
officer of ADT Finance Plc, of a board resolution of ADT
Finance Plc approving the execution, delivery and performance
of this Facility Letter and the terms and conditions thereof
and authorising a named person or persons to sign this Facility
Letter and any documents to be delivered by ADT Finance Plc
pursuant thereto; and
(c) a certificate of a duly authorised officer of the
relevant company setting out the names and signatures of the
persons authorised to sign, on behalf of ADT Finance Plc and
each of the Group Guarantors, this Facility Letter and any
documents to be delivered by ADT Finance Plc and each of the
Group Guarantors pursuant thereto.
2. In relation to each of the Group Guarantors a copy, certified
a true copy by a duly authorised officer of such Group Guarantor of a board
resolution approving the execution, delivery and performance of the guarantee
of even date herewith by such Group Guarantor in favour of the Bank of Nova
Scotia.
B. Credit Support
Guarantees of even date herewith given by each of ADT Limited,
ADT (UK) Holdings Limited, Modern Security Systems Limited, ADT Group plc,
Electric Protection Services Limited and Automated Security (Holdings) plc in
favour of The Bank of Nova Scotia.
C. Legal Opinions
Legal Opinion, of even dates herewith, of:
(i) Xxxxxxx, Xxxxxxxx & Xxxxx, Bermuda counsel to ADT Limited;
and
(ii) Clifford Chance, UK counsel to The Bank of Nova Scotia.
