EXHIBIT 10.5
CREDIT AGREEMENT AMENDMENT NO. 1 AND CONSENT
THIS CREDIT AGREEMENT AMENDMENT NO. 1 AND CONSENT (this "Amendment"),
dated as of June 27, 1997, among ADT OPERATIONS, INC., a company organized
under the laws of Delaware (the "Borrower"), the Agent (as defined below) and
the Required Lenders (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 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 extended 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, the Borrower 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 not to be Subsidiaries of ADT Limited for purposes of the Credit
Agreement (except for the definition of "High Quality Investments" in Section
1.1 thereof, clause (m) of Section 8.2.2 thereof and Sections 9.1.5, 9.1.6,
9.1.7, 9.1.9, 10.5 and 11.4 thereof); and
WHEREAS, the Borrower has requested related amendments to
Sections 1.1, 9.1.5, 9.1.6 and 9.1.7 of the Credit Agreement; and
WHEREAS, the Required Lenders are willing to 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 I
DEFINITIONS
Unless otherwise defined or the context otherwise requires,
terms for which meanings are provided in the Credit 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 Credit
Agreement is amended as set forth in this Section 2.1.
SECTION 2.1.1. Amendment to Section 1.1. (a) Section 1.1 of
the Credit Agreement is amended by adding the following terms and definitions
therefor:
"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 Fiscal
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 Fiscal 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 June 27, 1997, and each
Subsidiary of Tyco formed thereafter.
(b) Section 1.1 of the Credit Agreement is further amended by
amending the definition of "Material Related Party" by inserting the phrase
", each Material Tyco Party (prior to September 30, 1997)" after the words
"each Intermediate Parent Company".
SECTION 2.1.2. Amendment to Section 5.11. Section 5.11 of the
Credit Agreement is amended by inserting the parenthetical "(other than Tyco
Subsidiaries)" after the reference therein to "the Borrower".
SECTION 2.1.3. Amendment to Section 9.1.5. Section 9.1.5 of
the Credit 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 "$15,000,000".
SECTION 2.1.4. Amendment to Section 9.1.6. Section 9.1.6 of
the Credit 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 "$15,000,000".
SECTION 2.1.5. Amendment to Section 9.1.7. Section 9.1.7 of
the Credit 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 "$15,000,000".
SECTION 2.2. Consent. Subject to the terms and conditions set
forth herein and in reliance on the representations and warranties of the
Borrower herein contained, the Required Lenders consent and agree that, until
September 30, 1997, except for purposes of the definition of "High Quality
Investments" in Section 1.1 of the Credit Agreement, clause (m) of Section
8.2.2 of the Credit Agreement and Sections 9.1.5, 9.1.6, 9.1.7, 9.1.9, 10.5
and 11.4 of the Credit Agreement, the Tyco Subsidiaries shall be deemed not to
be Subsidiaries of ADT Limited or members of the Borrower's Controlled Group
for any purpose under the Credit Agreement. This consent 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 Credit Agreement 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 Credit Agreement, any other Loan
Document or any other instrument or agreement referred to therein.
ARTICLE III
CONDITIONS PRECEDENT
This Amendment shall become effective, as of the date hereof,
upon the receipt by the Agent of counterparts hereof executed on behalf of the
Borrower and the Required Lenders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Required Lenders and the Agent to enter
into this Amendment, the Borrower hereby reaffirms, as of the date hereof, the
representations and warranties contained in Article VII of the Credit Agreement
and additionally represents and warrants unto each Lender and each Agent that
no Default has occurred and is continuing.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Ratification of and References to the Credit
Agreement. This Amendment shall be deemed to be an amendment to the Credit
Agreement, and the Credit Agreement, as amended hereby, is hereby ratified,
approved and confirmed in each and every respect. All references to the
Credit Agreement in any other document, instrument, agreement or writing shall
hereafter be deemed to refer to the Credit 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. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
ADT OPERATIONS, INC.
By: /s/ Xxx X. Xxxx
---------------------------------
Title:
THE BANK OF NOVA SCOTIA,
as Agent
and as a Lender
By: /s/ X.X. Xxxxx
---------------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ X.X. XxXxxxxx
---------------------------------
Title: Director
CIBC INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Title: Director, CIBC Wood Gundy
Securities Corp. as Agent
CREDIT LYONNAIS ATLANTA
AGENCY
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Title: Senior Vice President
CREDIT SUISSE, Individually and as
Co-Agent
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Associate
FIRST UNION NATIONAL BANK OF FLORIDA
By:
---------------------------------
Title:
THE FUJI BANK, LIMITED, NEW YORK BRANCH
By:
---------------------------------
Title:
MELLON BANK N.A.
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Title: Assistant Vice President
MIDLAND BANK PLC, NEW YORK BRANCH
By: /s/ J.P. Bollington
---------------------------------
Title: V.P. Multinationals
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
---------------------------------
Title:
NATIONSBANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: Senior Vice President
