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EXHIBIT 10.1
CONSENT AND FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS CONSENT AND FIRST AMENDMENT dated, as of September 16,
1996 (this "Amendment"), is among PROTECTION ONE ALARM MONITORING, INC., a
Delaware corporation ("Borrower"), HELLER FINANCIAL, INC., a Delaware
corporation (in its individual capacity as a lender, "Lender", and in its
capacity as agent for the lenders, "Agent"), and the other financial
institutions signatory hereto, each in its capacity as a Lender.
W I T N E S S E T H :
WHEREAS, Borrower, Agent and Lenders are parties to that
certain Amended and Restated Credit Agreement dated as of June 7, 1996 (the
"Credit Agreement") and to certain other documents executed in connection with
the Credit Agreement;
WHEREAS, Borrower has begun the steps necessary to consummate
an offering of its Subordinated Convertible Notes (as hereinafter defined), the
proceeds of which shall be used to repay a substantial portion of the
outstanding Revolving Loan;
WHEREAS, the completion of the offering of the Subordinated
Convertible Notes and use of proceeds thereof as described herein would
substantially strengthen the capital structure of Borrower;
WHEREAS, the parties wish to enter into this Amendment to
consent to the proposed offering of the Subordinated Convertible Notes and
certain related transactions and to amend the Credit Agreement as provided
herein;
NOW, THEREFORE, for and in consideration of the terms and
conditions contained herein, and other good and valuable consideration the
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Defined Terms.
1.1 All capitalized terms used herein and not otherwise
defined shall have the respective meanings ascribed thereto in the Credit
Agreement.
1.2 Additional Definitions. When used herein, the
following additional defined terms shall have the following respective
meanings:
"Complete" or "Completed" means, with reference to
the Notes Offering, the issuance of the Subordinated Convertible Notes and the
delivery to Borrower by the underwriters retained by Borrower of the net cash
proceeds from the Notes Offering.
"First Amendment Effective Date" shall mean that date
on or before September 30, 1996 on which each of the conditions set forth in
Section 4 of this Amendment shall have been met or performed by Borrower or
otherwise waived in writing by Agent and Lenders.
"Notes Offering" means the underwritten public
offering by Borrower, through Morgan Stanley & Co., Bear, Stearns & Co. Inc.
and Montgomery Securities, of the Subordinated
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Convertible Notes, resulting in net cash proceeds to Borrower of not less than
ninety-seven percent (97%) of the aggregate principal amount of the
Subordinated Convertible Notes.
"Preliminary Prospectus" means the prospectus of
Borrower dated August 29, 1996, together with the preliminary prospectus
supplement thereto dated September 5, 1996, with respect to the Notes Offering,
true and correct copies of which have heretofore been provided to Agent and
Lenders.
"Refinancing Transactions" means the execution and
delivery of the Refinancing Transactions Documents, the issuance of the
Subordinated Convertible Notes, the Completion of the Notes Offering, the
partial repayment of the Revolving Loan with the net proceeds of the Notes
Offering and the payment of all fees, costs and expenses associated with the
foregoing.
"Refinancing Transactions Documents" means this
Amendment and the related Loan Documents delivered in connection herewith and
the Subordinated Convertible Note Documents.
"Subordinated Convertible Note Documents" and
"Subordinated Convertible Note Underwriting Agreement" have the meanings given
such terms in Section 3.1 of this Amendment.
"Subordinated Convertible Notes" means those 6.75%
Convertible Senior Subordinated Notes Due 2003 of Borrower to be issued on the
First Amendment Effective Date and (to the extent applicable) on the Option
Closing Date (as defined in the Subordinated Convertible Note Underwriting
Agreement) as more fully described in the Preliminary Prospectus.
2. Consent to Refinancing Transactions. Subject to the
satisfaction of each of the conditions set forth in Section 4 of this Amendment
(or written waiver thereof by Agent and Lenders), Agent and Lenders hereby
consent to (i) the issuance on the First Amendment Effective Date of the
Subordinated Convertible Notes in an aggregate initial principal amount not
exceeding $103.5 million and bearing interest at a per annum rate not in excess
of 6.75% and the execution and delivery of the Subordinated Convertible Note
Documents (as defined in Section 3.1 hereof) in connection therewith in the
form previously delivered by Borrower to Agent, (ii) the Completion of the
Notes Offering and the application by Borrower of the proceeds thereof as set
forth on Schedule A hereto and (iii) in the event the aggregate principal
amount of the Subordinated Convertible Notes issued on the First Amendment
Effective Date is less than $103.5 million, the issuance on the Option Closing
Date (as defined in the Subordinated Convertible Note Underwriting Agreement)
of additional Subordinated Convertible Notes in an aggregate principal amount
not exceeding such difference pursuant to the overallotment option granted
under the Subordinated Convertible Note Underwriting Agreement and the
application by Borrower of the proceeds thereof as set forth on Schedule A
hereto.
3. Amendments to Loan Agreement. Subject to the satisfaction of
the conditions set forth in Section 4 of this Amendment, the parties hereto
agree to amend the Credit Agreement as set forth in this Section 3.
3.1 Subsection 1.1 of the Credit Agreement is hereby
amended by inserting the following new definitions therein in proper
alphabetical order:
"First Amendment" shall mean that Consent and First Amendment dated
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September 16, 1996 between Borrower and Agent and Lenders.
"First Amendment Effective Date" shall have the
meaning given in Section 1.2 of the First Amendment.
"Subordinated Convertible Note Indenture" means the
Subordinated Debt Shelf Indenture, as supplemented by Supplemental Indenture
No. 1, each dated as of the First Amendment Effective Date by and among State
Street Bank and Trust Company, as trustee, Holdings, as guarantor, and
Borrower, with respect to the Subordinated Convertible Notes.
"Subordinated Convertible Note Documents" means the
Subordinated Convertible Note Underwriting Agreement, the Subordinated
Convertible Note Indenture, the Subordinated Convertible Notes, and all
instruments, documents and agreements executed pursuant to the terms of the
foregoing.
"Subordinated Convertible Note Underwriting
Agreement" means the Underwriting Agreement among Holdings, Borrower and Morgan
Stanley and Co., Bear, Stearns & Co. Inc., Montgomery Securities and the other
underwriters signatory thereto, with respect to the issuance and sale of the
Subordinated Convertible Notes.
"Subordinated Convertible Notes" means those Senior
Subordinated Convertible Notes Due 2003 of Borrower issued on the First
Amendment Effective Date and (to the extent applicable) on the Option Closing
Date (as defined in the Subordinated Convertible Note Underwriting Agreement)
as permitted by the terms of the First Amendment.
3.2 Clause (d) of the definition of "Indebtedness"
appearing in subsection 1.1 of the Credit Agreement is hereby amended to read
as follows:
"(d) all Deferred Payment Obligations and any
other obligation owed for all or any part of the deferred purchase
price of property or services;"
3.3 The definitions of "MRR Attrition" and "Subordinated
Indebtedness" appearing in subsection 1.1 of the Credit Agreement shall be
deleted in their entirety and the following new definitions for such terms
shall be substituted in their place:
"MRR Attrition" means, for any trailing twelve-month
period, the quotient of:
(A) MRR for the last month of such trailing
twelve-month period ("Ending MRR"); less
Ending MRR attributable to internal
installations (excluding new owner reconnects
and conversions), less Ending MRR
attributable to Subscriber Accounts acquired
during such period; less MRR for the month
immediately preceding the beginning of such
period ("Beginning MRR"); plus MRR
attributable to account guaranties enforced
during such period; divided by
(B) the average MRR for such trailing
twelve-month period.
"Subordinated Indebtedness" means all Indebtedness
under the Subordinated Convertible Note Documents and the Subordinated Discount
Note Documents and all other Indebtedness of Borrower or any of Borrower's
Subsidiaries which is subordinated in right of
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payment to the Obligations.
3.4 The definition of "Loan Documents" appearing in
subsection 1.1 of the Credit Agreement is hereby amended by substituting the
words "but excluding all Subsequent Acquisition Documents, Capitalization
Documents, Subordinated Convertible Note Documents and Subordinated Discount
Note Documents" for the words "but excluding all Acquisition Documents,
Capitalization Documents and Subordinated Discount Note Documents" at the end
of such definition.
3.5 The definition of "Security Documents" appearing in
subsection 1.1 of the Credit Agreement is hereby amended by substituting the
term "Pledge Agreement" for the term "Pledge Agreements" in the sixth line
thereof.
3.6 The definition of "Subordinated Discount Notes"
appearing in subsection 1.1 of the Credit Agreement is hereby amended by
substituting the term "Borrower" for the term "Monitoring" in the second line
thereof.
3.7 Subsection 2.10(B) of the Credit Agreement is hereby
amended by deleting the words "but excluding the prepayment fee referenced in
subsection 2.3(D)" from such subsection.
3.8 Subsection 3.2(C) of the Credit Agreement is hereby
amended to read as follows:
"(C) No Default. No event shall have occurred and
be continuing or would result from the consummation of the borrowing
contemplated by such Notice of Borrowing that would constitute an
Event of Default or a Default, including without limitation any event
which would constitute a default or an event of default under the
Subordinated Convertible Note Indenture or the Subordinated Discount
Note Indenture."
3.9 Subsection 4.2(B) of the Credit Agreement is hereby
amended to delete any reference to Schedule 4.2(B).
3.10 Subsection 5.1(A) of the Credit Agreement is hereby
amended by changing the reference to "subsection 5.1(J)" contained in clause
(1) thereof to "subsection 5.1(H)."
3.11 Subsection 5.1(F) of the Credit Agreement is hereby
amended by changing the reference to "5.1(J)" contained in clause (2) thereof
to "5.1(H)".
3.12 Clause (d) of subsection 7.1 of the Credit Agreement
is hereby amended to read as follows:
"(d) Indebtedness evidenced by the Subordinated
Convertible Notes and the Subordinated Discount Notes;"
3.13 Clause (f)(iii) of subsection 7.1 of the Credit
Agreement is hereby amended to read as follows:
"(iii) the aggregate amount of Deferred Payment
Obligations at any time shall not exceed $5,000,000; and"
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3.14 Clause (g) of subsection 7.1 of the Credit Agreement
is hereby amended to read as follows:
"(g) Indebtedness not to exceed $500,000 in the
aggregate at any time outstanding incurred with respect to Capital
Leases permitted hereunder."
3.15 Clause (h) of subsection 7.4 of the Credit Agreement
is hereby amended to read as follows:
"(h) Contingent Obligations of Holdings and
Borrower's Subsidiaries with respect to the Subordinated Indebtedness
under the Subordinated Convertible Note Indenture and the Subordinated
Discount Note Indenture and with respect to other Indebtedness
permitted by subsection 7.1;"
3.16 Clause (b) of subsection 7.5 of the Credit Agreement
is hereby amended to read as follows:
"(b) The Subordinated Convertible Notes may be
converted into Holdings Capital Stock at any time or from time to time
in accordance with the terms of Subordinated Convertible Note
Indenture;"
3.17 Subsection 7.8 of the Credit Agreement is hereby
amended by inserting the word "operating" in between the words "any" and
"lease" in the fourth line thereof.
3.18 The payments to Morgan Stanley & Co. pursuant to the
terms of the Subordinated Convertible Note Underwriting Agreement shall not be
deemed violative of subsection 7.11 of the Credit Agreement.
3.19 The second sentence of subsection 7.13 of the Credit
Agreement is hereby amended to read as follows:
"From and after the Closing Date, Holdings shall not
engage in any type of business activity other than ownership of
Borrower's capital stock and the performance of its obligations under
the Subordinated Convertible Note Indenture, the Subordinated Discount
Note Indenture, the Holdings Guaranty, the Holdings Pledge Agreement
and any other Loan Documents to which it is a party."
3.20 Subsection 7.14 of the Credit Agreement is hereby
amended by adding the following sentence at the end of such subsection:
"Borrower will not, nor will Borrower permit Holdings
or any of Borrower's Subsidiaries to, (a) incur or permit to be
outstanding any unsecured "Senior Indebtedness" or unsecured
"Guarantor Senior Indebtedness" (as such terms are defined in the
Subordinated Convertible Note Indenture and the Subordinated Discount
Note Indenture) or (b) designate any Indebtedness (other than the
Obligations) as "Designated Senior Indebtedness" under either the
Subordinated Convertible Note Indenture or the Subordinated Discount
Note Indenture."
3.21 Subsection 8.1(K) of the Credit Agreement is hereby
amended by changing the reference to "subsection 4.18" contained therein to
"subsection 4.17."
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3.22 Subsection 8.1(S) of the Credit Agreement is hereby
amended by deleting the "." at the end of such subsection and inserting the
following:
"; or (vi) the occurrence of a "Fundamental Change" as defined in the
Subordinated Convertible Note Indenture."
3.23 Subsection 8.2 of the Credit Agreement is hereby
amended by substituting the words "any Lender" for the word "Lenders" in the
second line thereof.
3.24 Clause (b) of the proviso contained in the first
paragraph of subsection 9.1 of the Credit Agreement is hereby amended to read
as follows:
"(b) upon granting its consent, Agent shall notify
Borrower of the proposed assignment and the identity of the proposed
assignee and the amount to be assigned and Borrower shall notify Agent
and such Lender whether or not it consents to the proposed assignment
(which consent shall not be unreasonably withheld) within five (5)
Business Days of receipt of notice from Agent, and, if Borrower does
not grant its consent to the proposed assignment, then Borrower shall
have a period of ninety (90) days to locate an assignee acceptable to
Borrower and Agent and, failing that, at the conclusion of said ninety
(90) day period such Lender shall be free to make the assignment to
the originally selected assignee,"
3.25 Subsection 9.1 of the Credit Agreement is hereby
amended by deleting the reference to subsection 2.11 in the second paragraph
thereof.
3.26 Subsection 9.3(D) of the Credit Agreement is hereby
amended, by substituting the words "ten (10) Business Days" for the words "five
(5) Business Days" in such subsection.
3.27 Subsection 9.3(F) of the Credit Agreement is hereby
amended by substituting the words "Requisite Lenders" for the word "Agent" in
the first line of such subsection.
3.28 Subsection 9.6(A)(3) of the Credit Agreement is
hereby amended by substituting the word "month" for the words "fiscal quarter"
at the end of the first sentence of the second paragraph of such subsection.
3.29 Subsection 10.1 of the Credit Agreement is hereby
amended to insert the phrase "(with respect to fees, costs and expenses
referenced in clauses (g) and (h) below)" before the words "any Lender" in the
third line of such subsection.
3.30 Subsection 10.3 of the Credit Agreement is hereby
amended by inserting the words "amend or waive subsection 2.4(C)(1) hereof or"
at the beginning of clause (f) of such subsection.
3.31 Subsection 10.17 of the Credit Agreement is hereby
deleted.
4. Conditions to Effectiveness. This Agreement shall not become
effective unless and until all of the following conditions have been satisfied
(except that the amendments set forth in Sections 3.2, 3.3 (relating to the
definition of MRR Attrition), 3.4 through 3.7, 3.9 through 3.11, 3.13, 3.14,
3,17, 3.21 and 3.23 through 3.31 of this Amendment shall become effective
immediately upon the satisfaction of the conditions set forth in clauses (a),
(b) and (c) below).
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(a) Amendment. There shall have been delivered
to Agent copies of this Amendment duly executed by Lenders and
Borrower.
(b) No Default. No Default or Event of Default
under the Credit Agreement, as amended hereby, shall have occurred and
be continuing on the First Amendment Effective Date.
(c) Warranties and Representations. The
warranties and representations of Borrower contained in this
Amendment, the Credit Agreement, as amended hereby, and the Loan
Documents, shall be true and correct as of the First Amendment
Effective Date, with the same effect as though made on such date,
except for any representation or warranty limited by its terms to a
specific date.
(d) Merger of Metrol and Sonitrol into Borrower.
Metrol Security Services, Inc. and Sonitrol of Arizona, Inc. shall
have been merged with and into Borrower.
(e) Notes Offering and Related Transactions. On
the First Amendment Effective Date, Borrower shall have Completed the
Notes Offering and shall have applied the proceeds of the Notes
Offering in accordance with Schedule A hereto (excluding those fees
and expenses referred to in Schedule A which are not then due and
payable) with satisfactory evidence thereof.
(f) Subordinated Convertible Note Documents.
Agent shall have received executed copies of the Subordinated
Convertible Note Indenture, the Subordinated Convertible Note
Underwriting Agreement and such other Subordinated Convertible Note
Documents as may be requested by Agent, all of which shall be in form
and substance satisfactory to Agent;
(g) Resolutions and Officer's Certificates.
Borrower shall have executed and delivered to Agent resolutions of the
Board of Directors of Borrower approving and authorizing the execution
and delivery of this Agreement and the performance of the transactions
contemplated hereby, certified by Borrower's corporate secretary and
assistant secretary as being in full force and effect without
modification or amendment.
(h) Reaffirmation of Holdings Guaranty. Holdings
shall have executed and delivered a Reaffirmation of Guaranty in form
and substance satisfactory to Agent.
(i) Opinions of Counsel. Agent shall have
received a written opinion of Mitchell, Silberberg & Knupp, counsel
for Borrower, in form and substance satisfactory to Agent and its
counsel, dated as of the First Amendment Effective Date.
(j) Other Documents. Borrower shall have
delivered such other documents as Agent may have reasonably requested.
5. Failure to Meet Conditions. If Borrower shall fail to fulfill
any of the conditions set forth in Section 4 on or prior to September 30, 1996,
then the Credit Agreement shall continue in full force and effect without
regard to the consents and amendments set forth in this Amendment (except for
the consents and amendments set forth in Sections 3.2, 3.3 (relating to the
definition of MRR Attrition), 3.4 through 3.7, 3.9 through 3.11, 3.13, 3.14,
3.17, 3.21 and 3.23 through 3.31 of this Amendment, which shall be deemed
effective upon satisfaction of the conditions set forth in
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clauses (a) , (b) and (c) of Section 4 above) and (except for the
above-referenced consents and amendments) this Amendment shall be void, ab
initio, because it is premised on a substantially improved capital structure,
and neither this Amendment nor Schedule A hereto shall have any force or effect
whatsoever in the interpretation or construction of the provisions of the
Credit Agreement.
6. Representations and Warranties.
(a) Authorization. The execution, delivery and
performance of each of the Refinancing Transactions Documents and the
consummation of the Refinancing Transactions by each Loan Party have
been duly authorized by all necessary corporate and shareholder
action.
(b) No Conflict. The execution, delivery and
performance by each Loan Party of each Refinancing Transactions
Document to which it is a party do not and will not: (1) violate any
provision of law applicable to any Loan Party, the certificate of
incorporation or bylaws of any Loan Party, or any order, judgment or
decree of any court or other agency of government binding on any Loan
Party; (2) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any Contractual
Obligation of any Loan Party; (3) result in or require the creation or
imposition of any material Lien upon any of the properties or assets
of any Loan Party (other than Liens in favor of Agent, for the benefit
of Lenders); or (y) require any approval or consent of any Person
under any Contractual Obligation of any Loan Party, except, with
respect to each of the clauses (1) through (4) above for such
approvals or consents to be obtained on or before the First Amendment
Effective Date.
(c) Binding Obligation. This Agreement is, and
the other Refinancing Transactions Documents, when executed and
delivered will be, the legally valid and binding obligations of the
applicable Loan Parties, each enforceable against the Loan Parties in
accordance with their respective terms.
(d) Valid Issuance of Subordinated Convertible
Notes. The issuance and sale of the Subordinated Convertible Notes
are registered and/or qualified under applicable federal and state
securities laws. Borrower has the corporate power and authority to
incur the Indebtedness evidenced by the Subordinated Convertible Notes
and to issue the Subordinated Convertible Notes. Holdings has the
corporate power and authority to incur the Contingent Obligations
evidenced by the Subordinated Convertible Note Indenture and to issue
the Holdings Capital Stock issuable upon conversion of the
Subordinated Convertible Notes. The Subordinated Convertible Notes,
when issued and paid for, will be the legally valid and binding
obligations of Borrower enforceable against Borrower in accordance
with their terms (including those pertaining to subordination). On or
prior to the First Amendment Effective Date, Borrower shall have
delivered to Agent and each of the Lenders complete and correct copies
of the Subordinated Convertible Note Underwriting Agreement, the
Subordinated Convertible Note Indenture and such other Subordinated
Convertible Note Documents as may have been requested by Agent and
each of the representations and warranties given by Holdings, Borrower
or Borrower's Subsidiaries therein shall be true and correct in all
material respects as of the First Amendment Effective Date. The
subordination provisions of the Subordinated Convertible Note
Documents will be enforceable against the holders of the Subordinated
Convertible Notes by the holder of any Notes which has not effectively
waived the benefits thereof. All obligations, including the
Obligations to pay principal of and interest on the Loans, constitute
senior Indebtedness entitled to the benefits
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of the subordination created by the Subordinated Convertible Note
Documents. Borrower acknowledges that Agent and each Lender are
entering into this Amendment and/or each Lender Addition Agreement and
are extending the Revolving Loan Commitment in reliance upon the
subordination provisions of the Subordinated Convertible Note
Documents and this Section.
7. Miscellaneous.
(a) Captions. Section captions used in this
Amendment are for convenience only, and shall not affect the
construction of this Amendment.
(b) Governing Law. This Amendment shall be a
contract made under and governed by the laws of the State of Illinois,
without regard to conflict of laws principles. Whenever possible each
provision of this Amendment shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of
this Amendment 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 Amendment.
(c) Counterparts. This Amendment may be executed
in any number of counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be an
original, but all such counterparts shall together constitute but one
and the same Amendment.
(d) Successors and Assigns. This Amendment shall
be binding upon Borrower, Agent and Lenders and their respective
successors and assigns, and shall inure to the sole benefit of
Borrower, Agent and Lenders and their respective successors and
assigns.
(e) References. Any reference to the Credit
Agreement contained in any notice, request, certificate, or other
document executed concurrently with or after the execution and
delivery of this Amendment shall be deemed to include this Amendment
unless the context shall otherwise require.
(f) Continued Effectiveness. Notwithstanding
anything contained herein, the terms of this Amendment are not
intended to and do not service to effect a novation as to the Credit
Agreement. The parties hereto expressly do not intend to extinguish
the Credit Agreement. Instead, it is the express intention of the
parties hereto to reaffirm the indebtedness created under the Credit
Agreement which is evidenced by the Revolving Notes and secured by the
Collateral. The Credit Agreement as amended hereby and each of the
Loan Documents remain in full force and effect.
(g) Costs, Expenses and Taxes. Borrower affirms
and acknowledges that Section 10.1 of the Credit Agreement applies to
this Amendment and the transactions and agreements and documents
contemplated hereunder.
Delivered at Chicago, Illinois, as of the date and year first
above written.
PROTECTION ONE
ALARM MONITORING, INC.
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By: JOHN W. HESSE
---------------------------------
Name Printed: John W. Hesse
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Title: Executive Vice President
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HELLER FINANCIAL, INC.
as Agent and Lender
By: TIMOTHY CANON
---------------------------------
Name Printed: Timothy Canon
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Title: Vice President
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BANQUE NATIONALE DE PARIS, NEW
YORK BRANCH, as a Lender
By: SERGE DESRAYAUD
---------------------------------
Name Printed: Serge Desrayaud
-----------------------
Title: Vice President
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By: PAMELA LUCASH
---------------------------------
Name Printed: Pamela Lucash
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Title: Assistant Treasurer
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MERITA BANK, LTD.,
as a Lender
By: CHARLES J. LANSDOWN
---------------------------------
Name Printed: Charles J. Lansdown
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Title: Vice President
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By: ERIC L. MANN
---------------------------------
Name Printed: Eric L. Mann
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Title: Vice President
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IBJ SCHRODER BANK & TRUST COMPANY,
as a Lender
By: MARY McLAUGHLIN
---------------------------------
Name Printed: Mary McLaughlin
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Title: Vice President
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FIRST UNION BANK OF NORTH CAROLINA,
as a Lender
By: BRUCE LOFTIN
---------------------------------
Name Printed: Bruce Loftin
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Title: Senior Vice President
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TORONTO DOMINION (TEXAS), INC.,
as a Lender
By: LISA ALLISON
---------------------------------
Name Printed: Lisa Allison
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Title: Vice President
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