SECOND AMENDMENT OF CREDIT AGREEMENT
THIS SECOND AMENDMENT OF CREDIT AGREEMENT (this "AMENDMENT") is entered
into to be effective as of February 29, 2000, between PROTECTION ONE ALARM
MONITORING, INC., a Delaware corporation ("BORROWER"), each of the Persons which
is a signatory to this Amendment (collectively, "LENDERS"), and WESTAR CAPITAL,
INC., as Administrative Agent for the Lenders (in such capacity, together with
its successors in such capacity, "ADMINISTRATIVE AGENT").
R E C I T A L S
A. Borrower, Lenders and Administrative Agent entered into the Credit
Agreement dated as of December 21, 1998 (as renewed, extended, modified, and
amended from time to time, the "CREDIT AGREEMENT"; capitalized terms used herein
shall, unless otherwise indicated, have the respective meanings set forth in the
Credit Agreement), providing for a revolving credit facility in the original
maximum principal amount of $500,000,000.
B. Pursuant to a letter agreement dated as of September 30, 1999, Borrower
reduced the Total Commitment to $250,000,000.
C. The Lenders and the Administrative Agent entered into that certain
Assignment and Acceptance dated December 17, 1999 wherein the Administrative
Agent and the Lenders assigned all of their rights and obligations under the
Credit Agreement to Westar Capital, Inc.
D. Pursuant to that certain Agreement of even date herewith among
Borrower, POI and Westar Capital, Inc., Borrower is selling certain assets to
Westar Capital, Inc. and will utilize the cash proceeds thereof to prepay the
Principal Debt (the "AGREEMENT") as set forth herein.
E. Borrower, Lender, and Administrative Agent desire to further modify
certain provisions contained in the Credit Agreement, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower, Lender, and
Administrative Agent agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT.
(A) SECTION 1.1 is hereby amended to delete the definitions of "APPLICABLE
MARGIN," "EBITDA," "INTEREST COVERAGE RATIO," "PERMITTED ACQUISITIONS," and
"TERMINATION DATE" in their entirety and replace such definitions with the
following:
APPLICABLE MARGIN means, as of any date of determination, the
interest margin over Base Rate or the Eurodollar Rate, as the case may be,
that corresponds to the Leverage Ratio set forth below on such date of
determination:
===========================================================================================================
APPLICABLE APPLICABLE APPLICABLE
MARGIN MARGIN FOR MARGIN FOR
LEVEL LEVERAGE RATIO FOR BASE RATE EURODOLLAR COMMITMENT
BORROWINGS BORROWINGS FEES
===========================================================================================================
1 Less than or equal to 5.00:1 1.00% 2.25% 0.375%
-----------------------------------------------------------------------------------------------------------
2 Greater than 5.00:1 but less 1.25% 2.50% 0.50%
than or equal to 5.25:1
-----------------------------------------------------------------------------------------------------------
3 Greater than 5.25:1 but less 1.65% 3.00% 0.50%
than or equal to 5.50:1
-----------------------------------------------------------------------------------------------------------
4 Greater than 5.50:1 2.15% 3.50% 0.50%
===========================================================================================================
The Applicable Margin payable by the Borrower on the Borrowings
outstanding hereunder shall be adjusted on the date of receipt by the
Administrative Agent of the Financial Statements and Compliance
Certificates required to be delivered pursuant to SECTIONS 9.3(A) AND (B)
as tested using the Leverage Ratio for the most recent fiscal quarter. If
the Financial Statements and Compliance Certificates required pursuant to
SECTION 9.3(A) OR (B) are not received by the Administrative Agent by the
date required, the Applicable Margin shall be determined as if the
Leverage Ratio is greater than 5.50:1. From the date hereof until the
Borrower's Financial Statements for the fiscal quarter ended March 31,
2000 and corresponding Compliance Certificate are delivered pursuant to
SECTION 9.3(B), the Applicable Margin shall be determined based on Level
1.
EBITDA means, with respect to any Person for any fiscal period, an
amount equal to (a) consolidated net income of such Person for such
period, minus (b) the sum of (i) income tax credits, (ii) interest income,
(iii) gains from extraordinary items for such period, and (iv) any
aggregate net gain during such period arising from the sale, exchange, or
other disposition of capital assets by such Person (including any fixed
assets, whether tangible or intangible, and all inventory sold in
conjunction with the disposition of fixed assets, but excluding asset
sales in the ordinary course of business permitted pursuant to SECTION
10.11), in each case to the extent included in the calculation of
consolidated net income of such Person for such period in accordance with
GAAP, but without duplication, minus (c) any cash payments made in respect
of any item of extraordinary loss accrued during a prior period and added
back to EBITDA in such prior period pursuant to CLAUSE (G)(V) below, plus
(d) to the extent deducted from the calculation of consolidated net income
in CLAUSE (A) above, (i) non-recurring expenses incurred in connection
with the restructuring (including the payment, prepayment, renegotiation,
buyout, or other compromise, collection, or other restructuring
transaction and all expenses related thereto including attorneys' fees and
expenses) of dealer contracts and receivables and (ii) expenses related to
the writeoff of dealer receivables (provided that the aggregate amount of
such expenses that may be added pursuant to this CLAUSE (D)
2
may not exceed $10,000,000 in the aggregate during the term of this
Agreement), plus (e) expenses related to the purchase of accounts from
Paradigm Direct, LLC recognized during such period that, in accordance
with GAAP, are required to be expensed (as opposed to capitalized), plus
(f) expenses related to the internal generation of accounts recognized
during such period that, in accordance with GAAP, are required to be
expensed (as opposed to capitalized), plus (g) the sum of (i) any
provision for income taxes, (ii) Interest Expense, (iii) the amount of
depreciation and amortization for such period, (iv) the amount of any
deduction to consolidated net income as the result of any Stock option
expense, (v) the amount of any item of extraordinary loss not paid in cash
in such period, and (vi) the absolute value of any aggregate net loss
during such period arising from the sale, exchange, or other disposition
of capital assets by such Person (including any fixed assets, whether
tangible or intangible, and all inventory sold in conjunction with the
disposition of fixed assets, but excluding asset sales in the ordinary
course of business permitted pursuant to SECTION 10.11), in each case to
the extent included in the calculation of consolidated net income of such
Person for such period in accordance with GAAP, but without duplication.
In the case of any Permitted Acquisition or internally generated account
during any period of calculation, EBITDA shall, for the purposes of the
foregoing calculations, be adjusted to give effect to such Permitted
Acquisition or internally generated account, as if such Permitted
Acquisition or internally generated account occurred on the first (1st)
day of such period, by, with respect to any Permitted Acquisition,
increasing, if positive, or decreasing, if negative, EBITDA by the EBITDA
of such newly-acquired business during such period of calculation
occurring prior to the date of such Permitted Acquisition.
INTEREST COVERAGE RATIO means, as of any date of determination
thereof, the ratio of (a) the product of (i) Consolidated EBITDA for the
most-recent fiscal quarter ending on or prior to the date of
determination, and (ii) four (4), to (b) Consolidated Interest Expense for
the most-recent four (4) fiscal quarters ending on or prior to the date of
determination; provided, however, for purposes of calculating the Interest
Coverage Ratio, (i) Consolidated Interest Expense shall be adjusted to
give pro forma effect to the reduction in Interest Expense as a result of
the reduction of Indebtedness from the application of the proceeds from
such asset disposition (whether such proceeds are in cash or bonds) as if
such asset disposition and corresponding reduction of Indebtedness
occurred on the first day of such determination period and (ii)
Consolidated EBITDA shall be adjusted to give pro forma effect to such
asset disposition as if such asset disposition had occurred on the first
day of such determination period.
PERMITTED ACQUISITIONS means:
(A) any Dealer Acquisition, including, without limitation, any
Paradigm Acquisition;
(B) any Immaterial Acquisition, provided that the aggregate
consideration with respect to such Immaterial Acquisition, when
3
combined with the aggregate consideration of all other Immaterial
Acquisitions during the twelve (12) month period prior to such Immaterial
Acquisition, does not exceed $10,000,000;
(C) any Acquisition by any Company with respect to which each of the
following requirements shall have been satisfied:
(I) as of the closing of any Acquisition, the Acquisition has
been approved and recommended by the board of directors (or other
equivalent governing body, if any) of the Person to be acquired or from
which such assets or business are to be acquired;
(II) as of the closing of any Acquisition, after giving effect
to such Acquisition, the acquiring party must be Solvent and the
Companies, on a consolidated basis, must be Solvent;
(III) as of the closing of any Acquisition, no Potential
Default or Default shall exist or occur as a result of, and after giving
effect to, such Acquisition;
(IV) as of the closing of any Acquisition, if such Acquisition
is structured as a merger, Borrower, (or if such merger is with any
Subsidiary of Borrower, then such Subsidiary) must be the surviving entity
after giving effect to such merger;
(V) the making and performance of the related acquisition
agreements with respect to such Acquisition, and all other agreements,
documents, and actions required thereunder, will not violate any provision
of any Law, except where such violation could not be a Material Adverse
Event, and will not violate any provisions of the Constituent Documents of
any Company, or constitute a default under any agreement by which any
Company or its respective property may be bound, except where such default
could not be a Material Adverse Event; and
(VI) if such Acquisition is a Material Acquisition,
contemporaneously with the closing of such Material Acquisition, Borrower
shall have delivered to Agent (A) a Permitted Acquisition Compliance
Certificate, demonstrating pro forma compliance with the terms and
conditions of the Loan Documents, after giving effect to the Acquisition,
and (B) any proposed adjustments to the Budget most-recently delivered
pursuant to the terms of this Agreement as a result of such Acquisition;
or
(D) any other Acquisition for which the prior written consent of
Required Lenders has been obtained (and Lenders agree to respond to a
request for consent to any such Acquisition within ten (10) Business Days
following Borrower's request for such consent; provided that the failure
to
4
provide a response to such request for consent shall be deemed to be a
refusal to grant such consent).
TERMINATION DATE means the earlier of (a) January 2, 2001, and (b)
the effective date of any other termination or cancellation of Lenders'
commitments to lend under, and in accordance with, this Agreement.
(B) SECTION 1.1 is hereby amended to add the following definitions:
"ASSET SALE" means the sale, transfer, or other disposition by any
Company of any of its assets other than any sale, transfer or disposition
of any assets (a) permitted by SUBSECTIONS 10.11(A) THROUGH (G), or (b)
which, when the Net Proceeds thereof are added to the Net Proceeds of any
other sale, transfer or other disposition pursuant to this clause (b),
does not yield Net Proceeds in excess of $2,000,000 in the aggregate.
"INCREASE EFFECTIVE DATE" has the meaning set forth in SECTION
2.5(A).
"INCREASE REQUEST" has the meaning set forth in SECTION 2.5(A).
"NET PROCEEDS" means, with respect to any Asset Sale by any Company,
the amount of cash received by such Company in connection with such
transaction after deducting therefrom the aggregate, without duplication,
of the following amounts to the extent properly attributable to such
transaction: (a) reasonable brokerage commissions, attorneys' fees,
finder's fees, accounting fees, and other similar commissions and fees, in
each case, to the extent paid or payable by such Company; and (b) taxes
paid or payable by such Company to any Governmental Authority as a result
of such transaction.
"PARADIGM ACQUISITION" means the acquisition of contracts or accounts
from Paradigm Direct, LLC.
"REQUESTED AMOUNT" has the meaning set forth in SECTION 2.5(A).
"SECOND AMENDMENT" means the Second Amendment to Credit Agreement
dated effective as of February 29, 2000 among the Borrower, the Lenders
and the Administrative Agent.
"SPECIAL ASSET SALE" means the sale of the outstanding shares of
Protection One UK plc, Protection One International, Inc. and Protection
One Investments, Inc. pursuant to the Agreement.
(C) SECTION 1.1 is hereby amended to delete the definition of
"NATIONSBANK" in its entirety:
(D) SECTION 2.3 is hereby deleted in its entirety and replaced with the
following:
5
2.3 TERMINATION OF COMMITMENTS.
(A) VOLUNTARY. Without premium or penalty, and upon giving not less
than three (3) Business Days prior telephonic notice (followed by written
notice) to Administrative Agent, Borrower may terminate in whole or in
part the unused portion of the Total Commitment provided that (i) each
partial termination shall be in an amount of not less than $10,000,000 or
a greater integral multiple of $1,000,000; (ii) the amount of the
Commitment Usage may not exceed the Total Commitment (unless Borrowings
are simultaneously paid in an amount equal to such excess); and (iii) each
reduction shall be allocated Pro Rata among Lenders in accordance with
their respective Pro Rata Parts. Promptly after receipt of such notice of
termination or reduction, Administrative Agent shall notify each Lender of
the proposed cancellation or reduction. Such termination or partial
reduction of the Total Commitment shall be effective on the Business Day
specified in Borrower's notice (which date must be at least three (3)
Business Days after Borrower's delivery of such notice). In the event that
the Total Commitment is reduced to zero at a time when there shall be no
Principal Debt, this Agreement shall be terminated to the extent specified
in SECTION 14.14, and all commitment fees and other fees then earned and
unpaid hereunder and all other amounts of the Obligation then due and
owing shall be immediately due and payable, without notice or demand by
Administrative Agent or any Lender.
(B) MANDATORY. The Total Commitment shall automatically terminate in
an amount equal to each mandatory prepayment pursuant to SECTION
3.2(B)(III). The Total Commitment shall be automatically reduced to
$115,000,000 on the date of the mandatory prepayment pursuant to SECTION
3.2(B)(IV). Each termination in the Total Commitment pursuant to this
SECTION 2.3(B) shall be allocated Pro Rata among Lenders in accordance
with their respective Pro Rata Parts.
(E) A new SECTION 2.5 is hereby added as follows:
SECTION 2.5 INCREASE OF COMMITMENTS.
(a) The Borrower shall have the right from time to time to increase
the Total Commitment by an amount of up to $40,000,000 for the purpose of
consummating acquisitions approved by the Administrative Agent in its sole
and absolute discretion, upon a specific date (the "INCREASE EFFECTIVE
DATE") set forth in such request (the "INCREASE REQUEST") upon the same
terms and conditions as set forth herein. Any such increase shall be in
incremental aggregate amounts of not less than $5,000,000 (the "REQUESTED
AMOUNT") and shall increase the amount of the Total Commitments then in
effect and the Committed Sum of each Lender shall be increased by its Pro
Rata Part of the Requested Amount (subject to the Borrower's right to
terminate or reduce the amount of the Commitments pursuant to Section
2.3).
6
(b) On the Increase Effective Date specified in any Increase Request
(i) each Lender's Committed Sum shall be automatically increased by a Pro
Rata Part of the aggregate amount of the Requested Amount on the Increase
Effective Date therefor, and correspondingly, the Total Commitments, shall
be increased accordingly, in each case without the necessity of further
amendment to this Agreement and (ii) Borrower shall pay to the
Administrative Agent, for the account of the Credit Parties as
Administrative Agent shall determine, an amendment fee in an amount equal
to 3/8% of the Requested Amount on the Increase Effective Date.
(c) Upon the request to the Administrative Agent by any Lender, the
Borrower shall deliver to each such Lender, in exchange for the Note held
by such Lender, a new Note, in the principal amount of such Lender's
Committed Sum after giving effect to the adjustments made pursuant to this
Section 2.5.
(F) SECTION 3.2(B) is hereby deleted in its entirety and replaced with the
following:
(B) MANDATORY PAYMENTS.
(i) The Total Principal Debt is due and payable on the
Termination Date.
(ii) On any date of determination, if the Commitment Usage
exceeds the Total Commitment, then Borrower shall make a
mandatory prepayment of the Principal Debt in the amount of
such excess, together with (i) all accrued and unpaid interest
on the principal amount so prepaid, and (ii) any Consequential
Loss arising as a result thereof.
(iii) Subject in all respects to Section 10.11,
concurrently with the receipt thereof, Borrower shall make a
mandatory prepayment of the Principal Debt in an amount equal
to fifty percent (50%) of the Net Proceeds of each Asset Sale
(other than the Special Asset Sale).
(iv) On the effective date of the Second Amendment,
Borrower shall make a mandatory prepayment of the Principal
Debt in an amount equal to one hundred percent (100%) of the
cash proceeds of the Special Asset Sale.
(v) All mandatory prepayments hereunder shall be applied
Pro Rata.
(G) SECTION 9.3(A)(II) is hereby deleted in its entirety and replaced with
the following:
7
(ii) a Compliance Certificate (other than with respect to the fiscal
year ended December 31, 1999).
(H) The following language shall be added at the end of SECTION 9.3(B)
before the period ".":
(other than with respect to the fiscal quarter ended September 30,
1999)
(I) SECTION 10.9 is hereby deleted in its entirety and replaced with the
following:
10.9 DISTRIBUTIONS AND SUBORDINATED DEBT PAYMENTS.
(A) DISTRIBUTIONS. Borrower shall not, and shall not permit any other
Company to, directly or indirectly declare, make, or pay any
Distributions, other than (i) Distributions declared, made, or paid by any
Company wholly in the form of its capital Stock, and (ii) Distributions by
any Company to Borrower, (iii) Distributions in the form of Common Stock
of POI issued in connection with the conversion of the Convertible Notes,
and (iv) Distributions from any Subsidiary of POI to POI the proceeds of
which:
(A) shall be applied by POI directly to pay out-of-pocket
expenses, for administrative, legal, and accounting services provided
by third parties that are reasonable and customary and incurred in
the ordinary course of business for such professional services, or to
pay franchise fees and similar costs;
(B) will be used to repurchase the Stock of POI in order to
fulfill the obligations of any Company under an employee Stock
purchase plan or similar plan covering employees of any Company as
from time to time in effect;
(C) will be used to pay taxes of the Companies as part of a
consolidated, combined, or unitary tax filing group or of the
separate operations of POI; or
(D) will be used to make investments in, or loans to, any
Subsidiary of POI otherwise permitted pursuant to this Agreement.
(B) SUBORDINATED DEBT. Borrower shall not, and shall not permit any
other Company to pay, prepay, redeem, defease, or repurchase any
Subordinated Debt when it violates the subordination provisions thereof,
provided that so long as no Default exists Borrower may refinance
Subordinated Debt with the proceeds of other Subordinated Debt, provided,
further that notwithstanding the foregoing Borrower shall be permitted to
repurchase Subordinated Debt, in an aggregate amount not to exceed
$50,000,000.
8
(J) SECTION 10.11 is hereby deleted in its entirety and replaced with the
following:
10.11 SALE OF ASSETS. Borrower shall not, and shall not permit any
other Company to, sell, assign, transfer, or otherwise dispose of any of
its assets, other than (a) sales of inventory and equipment leases
(including, without limitation, equipment leases originated or acquired by
C.E.T., S.A. or its Subsidiaries) in the ordinary course of business, (b)
the sale, discount, or transfer of delinquent accounts receivable in the
ordinary course of business for purposes of collection, (c) sales of
immaterial assets for consideration not less than the fair market value
thereof, (d) dispositions of obsolete assets and assets no longer useful
in the respective businesses of the Companies, (e) transfers resulting
from any casualty or condemnation of property or assets, (f) licenses or
sublicenses of intellectual property and general intangibles and licenses,
leases, or subleases of other property in each case in the ordinary course
of business and that do not materially interfere with the business of any
Company, (g) dispositions permitted by SECTION 10.12, (h) other asset
sales during any fiscal year of the Companies in an aggregate amount not
exceeding ten percent (10%) of the consolidated total assets of the
Companies determined in accordance with GAAP for the most recent fiscal
year (without regard to any write down or write up thereof), and (i) the
Special Asset Sale.
(K) SECTION 10.13 is hereby deleted in its entirety and replaced with the
following:
10.13 FINANCIAL COVENANTS. As calculated on a consolidated basis for
the Companies:
(A) LEVERAGE RATIO. The Administrative Agent and the Lenders hereby
waive compliance with the Leverage Ratio for the fiscal quarters ended
September 30, 1999 and December 31, 1999. Borrower shall not permit the
Leverage Ratio, as of the last day of any fiscal quarter of the Companies
during the following periods, to be greater than the ratio set forth
opposite such period below:
--------------------------------------------------------------------------
PERIOD RATIO
--------------------------------------------------------------------------
January 1, 2000 through December 31, 2000 5.75 to 1.0
--------------------------------------------------------------------------
January 1, 2001 and thereafter 5.50 to 1.0
--------------------------------------------------------------------------
9
(B) INTEREST COVERAGE. The Administrative Agent and the Lenders
hereby waive compliance with the Interest Coverage Ratio for the fiscal
quarters ended September 30, 1999 and December 31, 1999. Borrower shall
not permit the Interest Coverage Ratio, as of the last day of any fiscal
quarter of the Companies during the following periods, to be less than the
ratio set forth opposite such period below:
--------------------------------------------------------------------------
PERIOD RATIO
--------------------------------------------------------------------------
January 1, 2000 through December 31, 2000 2.10 to 1.0
--------------------------------------------------------------------------
January 1, 2001 and thereafter 2.25 to 1.0
--------------------------------------------------------------------------
(L) SECTION 11.6 is hereby deleted in its entirety and replaced with the
following:
11.6 CHANGE OF CONTROL. POI shall cease to own, directly or
indirectly, one hundred percent (100%) of the voting control (directly or
indirectly) of Borrower.
(M) EXHIBIT A-1 is hereby deleted in its entirety and replaced with
EXHIBIT A-1 attached hereto.
(N) SCHEDULE 2.1 is hereby deleted in its entirety and replaced with
SCHEDULE 2.1 attached hereto.
2. AMENDMENT OF CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS. All references
in the Loan Documents to the Credit Agreement shall henceforth include
references to the Credit Agreement as modified and amended by this Amendment,
and as may, from time to time, be further modified, amended, restated, extended,
renewed, and/or increased.
3. RATIFICATIONS. Borrower (a) ratifies and confirms all provisions of the
Loan Documents as amended by this Amendment, (b) ratifies and confirms that all
guaranties, assurances, and Liens, if any, granted, conveyed, or assigned to the
Credit Parties under the Loan Documents are not released, reduced, or otherwise
adversely affected by this Amendment and continue to guarantee, assure, and
secure full payment and performance of the present and future Obligation, and
(c) agrees to perform such acts and duly authorize, execute, acknowledge,
deliver, file, and record such additional documents, and certificates as the
Credit Parties may reasonably request in order to create, perfect, preserve, and
protect those guaranties, assurances, and Liens.
4. REPRESENTATIONS. Borrower represents and warrants to the Credit Parties
that as of the date of this Amendment: (a) this Amendment has been duly
authorized, executed, and delivered by Borrower and each of the other Obligors
that are parties to this Amendment; (b) no action of, or filing with, any
Governmental Authority is required to authorize, or is otherwise required in
connection with, the execution, delivery, and performance by Borrower or any
other Obligor of this Amendment; (c) the Loan
10
Documents, as amended by this Amendment, are valid and binding upon Borrower and
the other Obligors and are enforceable against Borrower and the other Obligors
in accordance with their respective terms, except as limited by Debtor Relief
Laws and general principles of equity; (d) the execution, delivery, and
performance by Borrower and the other Obligors of this Amendment do not require
the consent of any other Person and do not and will not constitute a violation
of any Governmental Requirement, order of any Governmental Authority, or
material agreements to which Borrower or any other Obligor is a party thereto or
by which Borrower or any other Obligor is bound; (e) all representations and
warranties in the Loan Documents are true and correct in all material respects
on and as of the date of this Amendment, except to the extent that (i) any of
them speak to a different specific date, or (ii) the facts on which any of them
were based have been changed by transactions contemplated or permitted by the
Credit Agreement; and (f) both before and after giving effect to this Amendment,
no Potential Default or Default exists.
5. CONDITIONS. This Amendment shall not be effective unless and until:
(A) this Amendment has been executed by Borrower, the other Obligors,
Administrative Agent, and the Required Lenders;
(B) If requested by any Lender, Borrower shall have executed and delivered
to Administrative Agent Amended and Restated Notes dated of even date herewith,
and payable to the order of Lenders in the aggregate principal amount of the
Total Commitment;
(C) Borrower shall have delivered to Administrative Agent such documents
satisfactory to Administrative Agent evidencing the authorization and execution
of this Agreement, and the other documents executed and delivered in connection
herewith (including opinions of counsel) (collectively, the "AMENDMENT
DOCUMENTS"); and
(D) Borrower shall have paid to Administrative Agent, for the account of
the Credit Parties as Administrative Agent shall determine, (i) an amendment fee
in an amount equal to 3/8% of the Total Commitment on the effective date of this
Amendment after giving effect to the reductions on the date hereof ($431,250.00)
and (ii) the reasonable fees and expenses of Administrative Agent's counsel
(including the allocated costs of internal counsel) not to exceed $50,000.00.
6. CONTINUED EFFECT. Except to the extent amended hereby or by any
documents executed in connection herewith, all terms, provisions, and conditions
of the Credit Agreement and the other Loan Documents, and all documents executed
in connection therewith, shall continue in full force and effect and shall
remain enforceable and binding in accordance with their respective terms.
7. MISCELLANEOUS. Unless stated otherwise (a) the singular number includes
the plural and vice versa and words of any gender include each other gender, in
each case, as appropriate, (b) headings and captions may not be construed in
interpreting provisions, (c) this Amendment shall be construed -- and its
performance enforced --
11
under Texas law, (d) if any part of this Amendment is for any reason found to be
unenforceable, all other portions of it nevertheless remain enforceable, and (e)
this Amendment may be executed in any number of counterparts with the same
effect as if all signatories had signed the same document, and all of those
counterparts must be construed together to constitute the same document.
8. PARTIES. This Amendment binds and inures to Borrower and the Credit
Parties and their respective successors and permitted assigns.
9. ENTIRETIES. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
AMENDED BY THIS AMENDMENT AND THE OTHER AMENDMENT DOCUMENTS, REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THE CREDIT AGREEMENT
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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SIGNATURE PAGE TO SECOND AMENDMENT OF
CREDIT AGREEMENT AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
WESTAR CAPITAL, INC., AS ADMINISTRATIVE AGENT
AND
THE LENDERS NAMED HEREIN
EXECUTED as of the day and year first above written.
PROTECTION ONE ALARM MONITORING, INC.,
a Delaware corporation, as Borrower
By: /s/ Xxxx X. Xxxx III
---------------------------------------
Name: Xxxx X. Xxxx III
----------------------------------
Title: Chief Executive Officer
----------------------------------
SIGNATURE PAGE TO SECOND AMENDMENT OF
CREDIT AGREEMENT AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
WESTAR CAPITAL, INC., AS ADMINISTRATIVE AGENT,
AND
THE LENDERS NAMED HEREIN
WESTAR CAPITAL, INC., as Administrative
Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: Treasurer
----------------------------------
To induce the Credit Parties to enter into this Amendment, each of the
undersigned (a) consents and agrees to the Amendment Documents' execution and
delivery, (b) ratifies and confirms that all guaranties, assurances, and Liens,
if any, granted, conveyed, or assigned to the Credit Parties under the Loan
Documents are not released, diminished, impaired, reduced, or otherwise
adversely affected by the Amendment Documents and continue to guarantee, assure,
and secure the full payment and performance of all present and future
Obligations (except to the extent specifically limited by the terms of such
guaranties, assurances, or Liens), (c) agrees to perform such acts and duly
authorize, execute, acknowledge, deliver, file, and record such additional
guaranties, assignments, security agreements, deeds of trust, mortgages, and
other agreements, documents, instruments, and certificates as the Credit Parties
may reasonably deem necessary or appropriate in order to create, perfect,
preserve, and protect those guaranties, assurances, and Liens, and (d) waives
notice of acceptance of this consent and agreement, which consent and agreement
binds the undersigned and its successors and permitted assigns and inures to the
Credit Parties and their respective successors and permitted assigns.
PROTECTION ONE, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxx III
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Name: Xxxx X. Xxxx III
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Title: Chief Executive Officer
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NETWORK MULTI-FAMILY SECURITY CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxx III
---------------------------------------
Name: Xxxx X. Xxxx III
----------------------------------
Title: Chief Executive Officer
----------------------------------
