Exhibit 10.2
AMENDMENT AND ASSIGNMENT AGREEMENT
This AMENDMENT AND ASSIGNMENT AGREEMENT (this "Amendment and
Assignment"), dated as of April 14, 1997, is made among ADT OPERATIONS, INC.,
a Delaware corporation (the "Borrower"), THE BANK OF NOVA SCOTIA
("Scotiabank"), the Lender under the Original Credit Agreement referred to
below (the "Initial Lender"), the Persons identified as "Assignee Lenders" on
the signature pages hereto (collectively, the "Assignee Lenders", and,
together with the Initial Lender, the "Lenders") and Scotiabank, as agent (in
such capacity, the "Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Initial Lender and the Agent have heretofore
entered into a Credit Agreement, dated as of January 9, 1997 (the "Original
Credit Agreement");
WHEREAS, in order to induce the Initial Lender and the Agent to enter
into the Original Credit Agreement, ADT Limited, a company organized under the
laws of Bermuda ("ADT Limited"), and the Subsidiary Guarantors signatories to
the Subsidiary Guarantor Guaranty extended to the Agent for the benefit of the
Lenders guaranties pursuant to the ADT Limited Guaranty and the Subsidiary
Guarantor Guaranty, respectively, each dated as of January 9, 1997;
WHEREAS, the Borrower now desires, inter alia, (i) to increase the
Revolving Commitment Amount (as defined in the Original Credit Agreement) from
an aggregate amount of $200,000,000 to an aggregate amount of $250,000,000 and
(ii) to make certain other modifications to the Original Credit Agreement, all
as provided in the Amended and Restated Credit Agreement attached hereto as
Annex I;
WHEREAS, the Initial Lender desires to assign a portion of its rights
and obligations under the Original Credit Agreement and each other Loan
Document (each such Loan Document, an "Original Loan Document"), including the
Note delivered to the Initial Lender on the Closing Date (the "Original
Note"), in each case as amended pursuant to the terms hereof, to the Assignees,
and the Assignees desire to assume such rights and obligations, which rights
and obligations are set forth therein;
WHEREAS, in order to induce the Initial Lender, the Assignee Lenders and
the Agent to amend and restate the Original Credit Agreement, the Borrower
desires, and it is a condition to the effectiveness hereof, that ADT Limited
and the Subsidiary Guarantors confirm their respective guaranties to the Agent
for the benefit of the Lenders to secure all obligations under and in
connection with the Original Credit Agreement, the Original Note and each
other Original Loan Document;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment and Assignment shall have the
following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):
"ADT Limited" is defined in the second recital.
"Agent" is defined in the preamble.
"Amended and Restated Credit Agreement" is defined in Article II.
"Amendment and Assignment" is defined in the preamble.
"Amendment Effective Date" is defined in Section 4.1.
"Assignee Lenders" is defined in the preamble.
"Initial Lender" is defined in the preamble.
"Lenders" is defined in the preamble.
"Original Credit Agreement" is defined in the first recital.
"Original Loan Document" is defined in the fourth recital.
"Original Note" is defined in the fourth recital.
"Scotiabank" is defined in the preamble.
SECTION Other Definitions. Unless otherwise defined or the context
otherwise requires, terms used in this Amendment and Assignment, including its
preamble and recitals, have the meanings provided in the Amended and Restated
Credit Agreement.
ARTICLE II
AMENDMENTS
Effective on (and subject to the occurrence of) the Amendment Effective
Date, the Original Credit Agreement (including all exhibits and schedules
thereto) shall be and is hereby amended and restated to read in its entirety
as set forth in Annex I hereto (as set forth in such Annex I, the "Amended and
Restated Credit Agreement"), and as so amended and restated is hereby
ratified, approved and confirmed in each and every respect. The rights and
obligations of the parties to the Original Credit Agreement with respect to
the period prior to the Amendment Effective Date shall not be affected by such
amendment and restatement.
ARTICLE III
ASSIGNMENT OF CREDIT EXTENSIONS
AND COMMITMENTS
SECTION 3.1. Assignments. The Initial Lender hereby irrevocably sells,
transfers, conveys and assigns, without recourse, representation or warranty
(except as expressly set forth herein), to each Assignee and such Assignee
hereby irrevocably purchases from the Initial Lender a portion of the rights
and obligations of the Initial Lender under the Amended and Restated Credit
Agreement and each other Loan Document such that after giving effect to the
foregoing assignment and delegation, the Initial Lender's and each Assignee
Lender's Percentages for the purposes of the Amended and Restated Credit
Agreement and each other Loan Document will be as set forth opposite such
Person's name in Schedule I hereto, in each case, subject to the terms and
conditions set forth in this Amendment and Assignment (including Article IV)
and effective on the Amendment Effective Date.
SECTION 3.2. Additional Provisions for Assignments. (a) The Initial
Lender hereby represents and warrants to each Assignee Lender, that
immediately before giving effect to the provisions of this Article III, (i)
the Initial Lender is the legal and beneficial owner of the portion of its
rights and obligations as a Lender under the Amended and Restated Credit
Agreement and each other Loan Document being assigned to each Assignee
Lender pursuant to Section 3.1; and (ii) such rights and obligations being
assigned and sold by the Initial Lender are free and clear of any adverse
claim or encumbrance created by the Initial Lender and without recourse or
representation or warranty of any kind whatsoever except for the
representations and warranties set forth in this Section 3.2.
(b) Each of the Assignee Lenders hereby acknowledges and agrees that
(i) other than the representations and warranties contained in paragraph (a)
above, neither the Initial Lender nor the Agent has made any representations
or warranties or assumed any responsibility with respect to (x) any
statements, warranties or representations made in or in connection with this
Amendment and Assignment or the execution, legality, validity, enforceability,
genuineness or sufficiency of this Amendment and Assignment, the Original
Credit Agreement, any other Original Loan Document, the Amended and Restated
Credit Agreement or any other Loan Document or (y) the financial condition of
ADT Limited or the Borrower or any other Obligor or the performance by ADT
Limited or the Borrower or any other Obligor of the Obligations; (ii) it has
received such information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Amendment and Assignment; and (iii)
it has made and continues to make its own credit decisions in taking or not
taking action under this Amendment and Assignment, independently and without
reliance upon the Agent or the Initial Lender.
(c) The Borrower, the Initial Lender, the Assignee Lenders and the
Agent agree that the Initial Lender shall, as of the Amendment Effective Date,
relinquish its rights as a Lender and be discharged and released from its
obligations as a Lender under the Amended and Restated Credit Agreement and
each other Loan Document to the extent of the rights and obligations so sold
and assigned.
(d) The Borrower, the Assignee Lenders, the Initial Lender and the
Agent also agree that each Assignee Lender, as of the Amendment Effective
Date,
(i) shall be deemed automatically to have become a party to the
Amended and Restated Credit Agreement, have all the rights and
obligations of a "Lender" under the Amended and Restated Credit
Agreement and the other Loan Documents as if it were an original
signatory thereto to the extent of the rights and interests so
purchased and assumed; and
(ii) agrees to be bound by the terms and conditions set forth in the
Amended and Restated Credit Agreement and the other Loan Documents as
if it were an original signatory thereto.
(e) In the event any Loans are outstanding on the Amendment Effective
Date, (i) each Assignee shall deliver to the Agent on the Amendment Effective
Date immediately available funds in the full amount of the purchase made by it
pursuant to Section 3.1 in the amount of the portions so purchased and assumed
and (ii) the Agent shall, to the extent of the funds so received, disburse
such funds to the Initial Lender in the amount of the portions so sold and
assigned. From and after the Amendment Effective Date, the Agent shall make
all payments in respect of the rights and obligations assigned by the Initial
Lender to an Assignee Lender (including payments of principal, interest, fees
and other amounts) to such Assignee Lender for amounts which have accrued on
or subsequent to the Amendment Effective Date and to the Initial Lender for
amounts which have accrued prior to the Amendment Effective Date.
SECTION 3.3. Waiver of Agent Processing Fee. The Agent hereby agrees
to waive receipt of the payment of the processing fees set forth in Section
11.11.1 of the Existing Credit Agreement.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
SECTION 4.1. Amendment Effective Date. This Amendment and Assignment,
and the amendments, modifications and assignments set forth herein, shall
be and become effective on the date (the "Amendment Effective Date") when
each of the conditions set forth in this Article III shall have been
fulfilled to the satisfaction of the Agent.
SECTION 4.2. Resolutions, etc. The Agent shall have received from each
Obligor a certificate, dated the Amendment Effective Date, of its Secretary or
Assistant Secretary as to
(a) resolutions of such Obligor's Board of Directors then in full
force and effect authorizing the execution, delivery and performance
of each Loan Document executed or to be executed by it; and
(b) the incumbency and signatures of those of its officers
authorized to act with respect to each Loan Document executed by it,
upon which certificate each Lender and the Agent may conclusively rely until
it shall have received a further certificate of the Secretary of such Obligor
canceling or amending such prior certificate.
SECTION 4.3. Execution of Counterparts. The Agent shall have received
counterparts of this Amendment and Assignment, duly executed and delivered on
behalf of the Borrower, the Initial Lender and each Assignee Lender.
SECTION 4.4. Execution of the Amended and Restated Credit Agreement. The
Agent shall have received counterparts of the Amended and Restated Credit
Agreement, duly executed and delivered on behalf of the Borrower, the Initial
Lender and each Assignee Lender.
SECTION 4.4. Notes. The Agent shall have received, for the account of
each Lender, such Lender's Notes, substantially in the form of Exhibit A to
the Amended and Restated Credit Agreement, dated the Closing Date, each in
the amount set forth opposite the name of such Lender, on Schedule I hereto
and duly executed and delivered by the Borrower.
SECTION 4.6. Delivery of Amendment Effective Date Certificate. The Agent
shall have received a certificate (the "Amendment Effective Date Certificate")
in the form of Annex II hereto (including all annexes thereto), dated the
Amendment Effective Date and duly executed and delivered by an Authorized
Officer of the Borrower in which such Amendment Effective Date Certificate the
Borrower shall have represented and warranted that the statements therein are
true and correct on and as of the Amendment Effective Date, and, at the time
such Amendment Effective Date Certificate is delivered, the Agent shall be
satisfied that such statements shall in effect be true and correct.
SECTION 4.7. Affirmation and Consent. The Agent shall have received,
with counterparts for each Lender, a duly executed copy of the Affirmation and
Consent relating to this Amendment and Assignment, substantially in the form
of Annexes III-A and III-B hereto, duly executed and delivered by ADT Limited
and the Subsidiary Guarantors, respectively.
SECTION 4.8. Consents, etc. The Agent shall have received true and
correct copies of all consents and approvals (if any) required for the
execution and delivery of this Amendment and Assignment and the
transactions contemplated hereby.
SECTION 4.9. Opinions of Counsel. The Agent shall have received, dated
the Closing Date and addressed to the Agent and all Lenders,
(a) an opinion of Xxxxxxx, Xxxxxxxx & Xxxxx, special Bermuda counsel
for ADT Limited, substantially in the form of Annex IV-A hereto;
(b) an opinion of Xxxxx Xxxx & Xxxxxxxx, special New York counsel to
ADT Limited, the Borrower and the other Obligors, substantially in
the form of Annex IV-B hereto;
(c) an opinion of Xxx Xxxxxxx & Xxxxx LLP, special corporate counsel
to the Borrower and the other Obligors, substantially in the form of
Annex IV-C hereto; and
(d) an opinion of Xxx Xxxx, Esq., general counsel to certain of the
Obligors, substantially in the form of Annex IV-D hereto.
SECTION 4.10. Notification of Trustees. The Agent shall have received
evidence satisfactory to it that the Borrower has notified each of the
trustees under the Senior Subordinated Note Indenture and the XXXXx Indenture
that the Amended and Restated Credit Agreement replaces the Original Credit
Agreement and thereby constitutes, from and after the Amendment Effective
Date, the "New Bank Credit Agreement" and the "Credit Agreement" under the
Senior Subordinated Note Indenture and XXXXx Indenture, respectively.
SECTION 4.11. Closing Fees, Expenses, etc. Each Assignee Lender shall
have received for its own account such fees as have been previously agreed
to by such Assignee Lender and the Initial Lender to be due and payable on
or prior to the Amendment Effective Date in connection with the assignments
referred to in Article III. The Agent shall have received all fees, costs
and expenses due and payable pursuant to Section 6.3 to the extent then
invoiced.
SECTION 4.12. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligor shall be satisfactory in form and
substance to the Agent and its counsel; and the Agent and such counsel
shall have received all information, approvals, opinions, documents or
instruments as the Agent or such counsel may reasonably request.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each Lender that:
SECTION 5.1. Compliance with Representations and Warranties. The
representations and warranties set forth herein, in Article VII of the Amended
and Restated Credit Agreement and in each other Loan Document delivered in
connection with this Amendment and Assignment, the Amended and Restated Credit
Agreement or the Original Credit Agreement are true and correct with the same
effect as if made on and as of the Amendment Effective Date (unless stated to
relate solely to an earlier date).
SECTION 5.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Amendment and Assignment, the
Amended and Restated Credit Agreement, the Notes issued in connection with
this Amendment and Assignment and each other Loan Document to which it is a
party, and the execution, delivery and performance by each Subsidiary of the
Borrower that is an Obligor of each Loan Document executed or to be executed
by it are within the Borrower's and each such Obligor's corporate powers, have
been duly authorized by all necessary corporate action, and do not
(a) contravene the Borrower's or any such Obligor's Organic Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the
Borrower or any such Obligor 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 or (ii) to subject any
Lender, Issuer or Agent to any liability; or
(c) result in, or require the creation or imposition of, any Lien on
any of any Obligor's properties.
SECTION 5.3. Validity, etc. This Amendment and Assignment, the
Amended and Restated Credit Agreement, the replacement Notes and each other
Loan Document executed by the Borrower constitute the legal, valid and
binding obligations of the Borrower enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect
affecting creditors' rights generally and to general principles of equity.
SECTION 5.4. 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 the Borrower or any Subsidiary of the
Borrower that is an Obligor of this Amendment and Assignment, the Amended and
Restated Credit Agreement, the Notes issued in connection with this Amendment
and Assignment or any other Loan Document to which it is a party.
SECTION 5.5. Compliance With Original Credit Agreement. As of the
execution and delivery of this Amendment and Assignment and up to the
Amendment Effective Date, each Obligor is in compliance with all the terms and
conditions of the Original Credit Agreement and the other Original Loan
Documents to be observed or performed by it, and no Default has occurred
and is continuing.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. No Other Amendments; References to the Credit Agreement.
Other than as specifically provided herein or in the amendment of terms and
conditions of the Original Credit Agreement that are specifically reflected in
the Amended and Restated Credit Agreement, this Amendment shall not operate as
a waiver or amendment of any right, power or privilege of the Initial Lender
under the Original Credit Agreement or any other Original Loan Document or of
any other term or condition of the Original Credit Agreement or any other
Original Loan Document nor shall the entering into of this Amendment preclude
the Lenders from refusing to enter into any further waivers or amendments with
respect to the Amended and Restated Credit Agreement. All references to the
Original Credit Agreement in any document, instrument, agreement, or writing
shall from and after the Amendment Effective Date be deemed to refer to the
Amended and Restated Credit Agreement, and, as used in the Amended and
Restated Credit Agreement, the terms "Agreement", "herein", "hereafter",
"hereunder", "hereto", and words of similar import shall mean, from and after
the Amendment Effective Date, the Amended and Restated Credit Agreement.
SECTION 6.2. Headings. The various headings of this Amendment and
Assignment are inserted for convenience only and shall not affect the meaning
or interpretation of this or any provisions hereof or thereof.
SECTION 6.3. Expenses. The Borrower agrees to pay on demand all
reasonable out-of-pocket expenses of the Agent (including the fees and out-
of-pocket expenses of counsel to the Agent (and of local counsel, if any,
who may be retained by such counsel)) in connection with the preparation,
negotiation, execution and delivery of this Amendment and Assignment, the
Amended and Restated Credit Agreement, each other Loan Document and the
documents and transactions contemplated hereby, including the reasonable
fees and disbursements of Xxxxx, Xxxxx & Xxxxx, as counsel for the Agent.
SECTION 6.4. Governing Law. THIS AMENDMENT AND ASSIGNMENT, THE NOTES
AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 6.5. Counterparts. This Amendment and Assignment may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument.
SECTION 6.6. Cross-References. References in this Amendment and
Assignment to any Article or Section are, unless otherwise specified or
otherwise required by the context, to such Article or Section of this
Amendment and Assignment.
SECTION 6.7. Loan Document and Lender Assignment Agreement Pursuant to
Credit Agreement. (a) This Amendment and Assignment is a Loan Document
executed pursuant to the Original Credit Agreement and shall be construed,
administered and applied in accordance with all of the terms and provisions
of the Original Credit Agreement (and, following the Amendment Effective
Date, the Amended and Restated Credit Agreement).
(b) This Amendment and Assignment shall be deemed to be a Lender
Assignment Agreement executed in accordance with all of the terms and
provisions of the Original Credit Agreement (and, following the Amendment
Effective Date, the Amended and Restated Credit Agreement). The notice
address of each Assignee Lender is set forth below its signature to the
Amended and Restated Credit Agreement.
SECTION 6.8. Successors and Assigns. This Amendment and Assignment shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION 6.9. Return of Existing Notes. The Initial Lender shall, upon
the occurrence of the Amendment Effective Date, xxxx each of the Notes
issued to it under the Original Credit Agreement "Exchanged" and promptly
return such Notes to the Borrower.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Assignment to be executed by their respective duly authorized officers as of
the day and year first above written.
ADT OPERATIONS, INC.
/s/ Xxx X. Xxxx
By: _______________________________
Title: Vice President
THE BANK OF NOVA SCOTIA, as Agent,
Issuer and the Initial Lender
/s/ X.X. Xxxxx
By: _______________________________
Title: Vice President
BANK OF MONTREAL,
as an Assignee Lender
/s/ Xxxx Xxxx
By: _______________________________
Title: Director
CIBC INC., as an Assignee Lender
/s/ Xxxxxxx X. Xxxxxxxxx
By: _______________________________
Title: Director, CIBC Wood
Gundy Securities Corp.,
AS AGENT
CREDIT LYONNAIS ATLANTA AGENCY,
as an Assignee Lender
/s/ Xxxxx X. Xxxxxx
By: _______________________________
Title: First Vice President
CREDIT SUISSE FIRST BOSTON,
as an Assignee Lender
/s/ Xxxxxx X. Xxxxxxxxxx
By: _______________________________
Title: Associate
/s/ Xxxxxx X. Xxxxx
By: _______________________________
Title: Associate
FIRST UNION NATIONAL BANK OF
FLORIDA, as an Assignee Lender
/s/ X. Xxxxxx Xxxxxx
By: _______________________________
Title: Vice President
THE FUJI BANK, LIMITED, NEW YORK
BRANCH, as an Assignee Lender
/s/ Xxxxxxxx Xxxxxx
By: _______________________________
Title: Senior Vice President
MELLON BANK N.A., as an Assignee
Lender
/s/ Xxxxxxxx X. Xxxx
By: _______________________________
Title: Assistant Vice President
MIDLAND BANK PLC, NEW YORK BRANCH,
as an Assignee Lender
/s/ Xxxx X. Xxxxx
By: _______________________________
Title: Authorized Signatory
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as an Assignee Lender
/s/ Xxxxxxx Xxxxxx
By: _______________________________
Title: Senior Vice President
NATIONSBANK, N.A. (SOUTH),
as an Assignee Lender
/s/ Xxxxx X. Xxxxxxxx
By: _______________________________
Title: Senior Vice President
SCHEDULE I
ALLOCATIONS OF THE LENDERS FOLLOWING THE ASSIGNMENTS
Amount of
Revolving
Lender Percentage Note
-------------------------------------------- ------------- -----------
THE BANK OF NOVA SCOTIA 20.000000000% $50,000,000
BANK OF MONTREAL 8.000000000% $20,000,000
CIBC INC. 8.000000000% $20,000,000
CREDIT LYONNAIS ATLANTA AGENCY 8.000000000% $20,000,000
CREDIT SUISSE FIRST BOSTON 8.000000000% $20,000,000
FIRST UNION NATIONAL BANK OF FLORIDA 8.000000000% $20,000,000
THE FUJI BANK, LIMITED, NEW YORK BRANCH 8.000000000% $20,000,000
MELLON BANK N.A. 8.000000000% $20,000,000
MIDLAND BANK PLC, NEW YORK BRANCH 8.000000000% $20,000,000
THE MITSUBISHI TRUST AND BANKING CORPORATION 8.000000000% $20,000,000
NATIONSBANK, N.A. (SOUTH) 8.000000000% $20,000,000
