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EXHIBIT 4.10
AMENDED AND RESTATED GUARANTY
This AMENDED AND RESTATED GUARANTY ("Guaranty") is dated as of
June 7, 1996 by PROTECTION ONE, INC., a Delaware corporation ("Guarantor"),
having an office at 3900 S.W. Murray Boulevard, Beaverton, Oregon 97005, in
favor of HELLER FINANCIAL, INC., a Delaware corporation, individually and as
agent (the "Agent") for the other Lenders under the Credit Agreement (as
hereinafter defined), having an office at 500 West Monroe Street, Chicago,
Illinois 60661.
WHEREAS, the Guarantor is the legal and beneficial owner of
all of the issued and outstanding capital stock of Protection One Alarm
Monitoring, Inc., a Delaware corporation ("Debtor");
WHEREAS, the Agent and the other Lenders named therein have
entered into that certain Amended and Restated Credit Agreement of even date
herewith (as the same may hereafter be further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") with the Debtor;
WHEREAS, the Debtor will become liable for the "Obligations"
(as defined in the Credit Obligations being hereinafter referred to as the
"Indebtedness"); and
WHEREAS, the Guarantor will derive substantial benefit and
advantage from the financial accommodations to the Debtor set forth in the
Credit Agreement, including the loans and advances made to the Debtor
thereunder, and it will be to the Guarantor's direct interest and economic
benefit to assist the Debtor in procuring such financial accommodations from the
Lender;
NOW, THEREFORE, for and in consideration of the premises and
in order to induce the Lenders to enter into the Credit Agreement and to make
loans thereunder, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as
follows (unless otherwise defined herein all capitalized terms used herein shall
have the meanings ascribed thereto in the Credit Agreement):
1. Guaranty of Payment.
(a) The Guarantor hereby unconditionally guarantees
the full and prompt payment to the Lenders, when due, upon demand, at
maturity or by reason of acceleration or otherwise and at all times
thereafter, of any and all of the Indebtedness.
(b) The Guarantor acknowledges that valuable
consideration supports this Guaranty, including, without limitation,
the consideration set forth in the recitals above as well as any
commitment to lend, extension of credit or other financial
accommodation, whether heretofore or hereafter made by the Lenders to
the Debtor, any extension, renewal or replacement of any of the
Indebtedness; any forbearance with respect to any of the Indebtedness
or otherwise any cancellation of an existing guaranty, any purchase of
any of the Debtor's assets by the Lenders; or any other valuable
consideration.
(c) The Guarantor agrees that all payments under this
Guaranty shall be made in United States currency and in the same manner
as provided for the Indebtedness.
2. Agent's and Lenders' Costs and Expenses. The Guarantor
agrees to pay on demand, if not paid by the Debtor, all costs and expenses of
every kind incurred by the Agent or the Lenders: (a) in enforcing this Guaranty;
(b) in collecting any of the Indebtedness from the Debtor or the Guarantor; (c)
in realizing upon or protecting any collateral for this Guaranty or for payment
of any of the Indebtedness;, and (d) for any other purpose related to the
Indebtedness or this Guaranty. "Costs and expenses" as used in the preceding
sentence shall include, without limitation, attorneys' fees incurred by the
Agent or any Lender in retaining counsel for advice, suit, appeal, any
insolvency or other proceedings under the United States Bankruptcy Code or
otherwise, or for any purpose specified in the preceding sentence.
3. Nature of Guaranty Continuing, Absolute and Unconditional.
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(a) This Guaranty is and is intended to be a
continuing guaranty of payment of the Indebtedness, independent of and
in addition to any other guaranty, endorsement, collateral or other
agreement held by the Agent or the Lenders therefor or with respect
thereto, whether or not furnished by the Guarantor, The obligations of
the Guarantor to repay the Indebtedness hereunder shall be unlimited.
Notwithstanding anything to the contrary in this Guaranty, the
Guarantor hereby irrevocably waives all rights which may have arisen in
connection with this Guaranty to be subrogated to any of the rights
(whether contractual, under the Bankruptcy code, including section 509
thereof, under common law or otherwise) of the Agent or any Lender
against the Debtor or against any collateral security or guarantee or
right of offset held by the Agent or any Lender for the payment of the
Indebtedness. The Guarantor hereby further irrevocably waives all
contractual, common law, statutory or other rights of reimbursement,
contribution, exoneration or indemnity (or any similar right) from or
against the Debtor or any other Person which may have arisen in
connection with this Guaranty So long as the Indebtedness remains
outstanding, if any amount shall be paid by or on behalf of the Debtor
to the Guarantor on account of any of the fights waived in this
paragraph, such amount shall be held by the Guarantor in trust,
segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Agent in the
exact form received by the Guarantor (duly endorsed by the Guarantor to
the Agent if required), to be applied against the Indebtedness, whether
matured or unmatured, in such order as the Agent may determine. The
provisions of this paragraph shall survive the term of this Guaranty
and the payment in full of the Indebtedness and the termination of the
Commitments. Notwithstanding the foregoing, in the event of the
bankruptcy or insolvency of the Debtor, the Agent, on behalf of the
Lenders, shall be entitled notwithstanding the foregoing, to file in
the name of the Guarantor or in its own name a claim for any and all
indebtedness owing to the Guarantor by the Debtor, vote such claim and
to apply the proceeds of any such claim to the Indebtedness.
(b) For the further security of the Lenders and
without in any was diminishing the liability of the Guarantor,
following the occurrence of an Event of Default and acceleration of the
Indebtedness, all debts and liabilities, present or future of Ml Debtor
to the Guarantor and all monies received from the Debtor or for its
account by the Guarantor in respect thereof shall be received in trust
for the Agent and the Lenders and forthwith upon receipt shall be paid
over to the Agent, for the benefit of the Lenders, until all of the
Indebtedness has been paid in full. This assignment and postponement Is
independent of and severable from this Guaranty and shall remain in
full force and effect whether or not the Guarantor is liable for any
amount under this Guaranty.
(c) This Guaranty is absolute and unconditional and
shall not be changed or affected by any representation, oral agreement,
act or thing whatsoever, except as herein provided. This Guaranty is
intended by the Guarantor to be the final, complete and exclusive
expression of the guaranty agreement between the Guarantor and the
Agent. No modification or amendment of any provision of this Guaranty
shall be effective unless in writing and signed by a duly authorized
officer of the Agent.
4. Certain Rights and Obligations.
(a) The Guarantor authorizes the Agent and the
Lenders, without notice, demand or any reservation of fights against
the Guarantor and without affecting the Guarantor's obligations
hereunder, from time to time: (i) to renew, extend, increase,
accelerate or otherwise change the time for payment of, the terms of or
the interest on the Indebtedness or any part thereof or grant other
indulgences to the Debtor or others; (ii) to accept from any Person and
hold collateral for the payment of the Indebtedness or any part
thereof, and to modify, exchange, enforce or refrain from enforcing, or
release, compromise, settle, waive, subordinate or surrender, with or
without consideration, such collateral or any part thereof, (iii) to
accept and hold any endorsement or guaranty of payment of the
Indebtedness or any part thereof, and to discharge, release or
substitute any such obligation of any such endorser or guarantor, or
any Person who has given any security interest in any collateral as
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security for the payment of the Indebtedness or any part thereof or any
other Person in any was obligated to pay the Indebtedness or any part
thereof, and to enforce or refrain from enforcing, or compromise or
modify, the terms of any obligation of any such indorser, guarantor, or
Person, (iv) to dispose of any and all collateral securing the
Indebtedness in any manner as the Agent or the Lenders, in their sole
discretion, may deem appropriate, and to direct the order or manner of
such disposition and the enforcement of any and all endorsements and
guaranties relating to the Indebtedness or any part thereof as the
Agent or the Lenders, in their sole discretion may determine, (v) to
determine the manner, amount and time of application of payments and
credits, if any, to be made on all or any part of any component or
components of the Indebtedness (whether principal, interest, fees,
costs, and expenses, or otherwise), including, without limitation, the
application of payments received from any source to the payment of
indebtedness other than the Indebtedness even though the Lenders might
lawfully have elected to apply such payments to the Indebtedness to
amounts which are not covered by this Guaranty; and (VI) to take
advantage or refrain from taking advantage of any security or accept or
make or refrain from accepting or making any compositions or
arrangements when and in such manner as the Agent or the Lenders, in
their sole discretion, may deem appropriate and generally do or refrain
from doing any act or thing which might otherwise, at law or in equity,
release the liability of Guarantor as a guarantor or surety in whole or
in part, and in no case shall the Lenders or Agent be responsible or
shall the Guarantor be released either in whole or in part for any act
or omission in connection with the Lenders or Agent having sold any
security at an under value.
(b) If any default shall be made in the payment of
any of the Indebtedness and any grace period has expired with respect
thereto, the Guarantor hereby agrees to pay the same in full to the
extent hereinafter provided: (i) without deduction by reason of any
setoff, defense (other than payment) or counterclaim of the Debtor,
(ii) without requiring presentment, protest or notice of nonpayment or
notice of default to the Guarantor, to the Debtor or to any other
Person; (iii) without demand for payment or proof of such demand or
filing of claims with a court in the event of receivership, bankruptcy
or reorganization of the Debtor, (iv) without requiring the Agent or
the Lenders to resort first to the Debtor (this being a guaranty of
payment and not of collection) or to any other guaranty or any
collateral which the Agent or the Lenders may hold; (v) without
requiring notice of acceptance hereof or assent hereto by the Agent;
and (VI) without requiring notice that any of the Indebtedness has been
incurred, extended or continued or of the reliance by the Agent or the
Lenders upon this Guaranty, all of which the Guarantor hereby waives.
(c) The Guarantor's obligation hereunder shall not be
affected by any of the following, all of which the Guarantor hereby
waives (i) any failure to perfect or continue the perfection of any
security interest in or other lien on any Collateral securing payment
of any of the Indebtedness or the Guarantor's obligation hereunder,
(ii) the invalidity, unenforceability, propriety, of manner of
enforcement of, or loss or change in priority of any such security
interest or other lien or guaranty of the Indebtedness; (iii) any
failure to protect, preserve or insure any such Collateral, (iv)
failure of the Guarantor to receive notice of any intended disposition
of such Collateral; (v) any defense arising by reason of the cessation
from any cause whatsoever of liability of the Debtor, including,
without limitation, any failure, negligence or omission by the Agent or
the Lenders in enforcing their claims against the Debtor, (vi) any
release, settlement or compromise of any obligation of the Debtor,
(vii) the invalidity or unenforceability of any of the Indebtedness;
(viii) any change of' ownership of the Debtor or the insolvency,
bankruptcy or any other change in the legal status of the Debtor. (ix)
any change in, or the imposition of, any law, decree, regulation or
other governmental act which does or might impair, delay or in any way
affect the validity, enforceability or the payment when due of the
Indebtedness; (x) the existence of any setoff or other right which the
Guarantor may have at any time against the Agent, any Lender or the
Debtor in connection herewith or any unrelated transaction; (xi) the
Lenders' election in any case instituted under chapter 11 of the United
States Bankruptcy Code, of the application of section 1111(b)(2) of the
United States Bankruptcy Code; (xii) any borrowing, use of cash
collateral, or grant of a security interest by the Debtor, as debtor in
possession, under sections 363 or 364 of the United States Bankruptcy
Code, (xiii) the disallowance of all or any portion of any of the
Lenders' claims for repayment of the Indebtedness under sections 502 or
506 of the United States
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Bankruptcy Code; or (xiv) any other fact or circumstance which might
otherwise constitute grounds at law or in equity for the discharge or
release of the Guarantor from its obligations hereunder, all whether or
not the Guarantor shall have had notice or knowledge of any act or
omission referred to in the foregoing clauses (i) through (xiv) of this
paragraph.
5. Representations and Warranties. The Guarantor further
represents and warrants to the Agent and the Lenders that: (a) it is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, and has full power, authority and
legal right to own its property and assets and to transact the business in which
it is engaged; (b) it has full power, authority and legal night to execute and
deliver, and to perform its obligations under, this Guaranty, and has taken all
necessary action to authorize the guaranty hereunder on the terms and conditions
of this Guaranty and to authorize the execution, delivery and performance of
this Guaranty; (c) this Guaranty has been duly executed and delivered by the
Guarantor and constitutes the legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its terms; and
(d) the representations and warranties of the other Loan Parties contained in
the Credit Agreement and the other Loan Documents are true, correct and complete
in all material respects on and as of the date hereof and all such
representations and warranties which are hereafter remade on any subsequent date
shall be true, correct and complete in all material respects on and as of such
date to the same extent made on and as of such date.
6. Security, Conduct of Business. Concurrently with the
execution hereof, Guarantor has entered into that certain Amended and Restated
Stock Pledge Agreement dated as of the date hereof with the Agent (the "Stock
Pledge Agreement"), pursuant to which the Guarantor has pledged the Pledged
Stock (as defined in the Stock Pledge Agreement) to the Agent, for the benefit
of the Lenders, as security for, among other things, its performance and
obligations under this Guaranty, The Guarantor warrants and represents to and
covenants with the Agent and the Lenders that: (a) the Guarantor has good,
indefeasible and merchantable title to all of its assets; (b) the Guarantor
shall not sell or dispose of any of the Pledged Stock and shall not grant a
security interest in or permit a lien, claim or encumbrance upon any of its
assets in favor of any third party other than its pledge of the Pledged Stock to
the Agent, for the benefit of the Lenders; (c) the Debtor will at all times be a
wholly-owned subsidiary of the Guarantor and (d) the Guarantor will not engage
in any type of business activity other than ownership of the capital stock of
the Debtor and the performance of its obligations under this Guaranty, the Stock
Pledge Agreement and any other Loan Document to which it is a party.
7. Termination. This Guaranty shall remain in full force and
effect until an officer of Agent shall actually receive from the Guarantor
written notice of its discontinuance; provided, however, this Guaranty shall
remain in full force and effect thereafter until all of the Indebtedness
outstanding, or contracted or committed for (whether or not outstanding), before
the receipt of such notice by Agent, and any extensions, renewals or
replacements thereof (whether made before or after receipt of such notice),
together with interest accruing thereon after such notice, shall be finally and
irrevocably paid in full. Payment of all of the Indebtedness from time to time
shall not operate as a discontinuance of this Guaranty. The Guarantor further
agrees that, to the extent that the Debtor makes a payment or payments to the
Agent or any of the Lenders on the Indebtedness, or the Agent or any of the
Lenders receive any proceeds of Collateral securing the Indebtedness, which
payment or receipt of proceeds or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be returned
or repaid to the Debtor, its estate, trustee, receiver, debtor in possession or
any other Person, including, without limitation, any guarantor, under any
insolvency or bankruptcy law, state or federal law, common law or equitable
cause, then to the extent of such payment, return or repayment, the obligation
or part thereof which has been paid, reduced or satisfied by such amount shall
be reinstated and continued in full force and effect as of the date when such
initial payment, reduction or satisfaction occurred, and this Guaranty shall
continue in full force notwithstanding any contrary action which may have been
taken by the Agent or the Lenders in reliance upon such payment, and any such
contrary action so taken shall be without prejudice to the Agent's or the
Lenders' rights under this Guaranty and shall be deemed to have been conditioned
upon such payment having become final and irrevocable
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8. Guaranty of Performance. The Guarantor also guarantees the
full, prompt and unconditional performance of all obligations and agreements of
every kind owed or hereafter to be owed by the Guarantor or the Debtor to the
Agent or the Lenders Every provision for the benefit of the Agent or the Lenders
contained in this Guaranty shall apply to the guaranty of performance given in
this paragraph. Without limiting the foregoing, the Guarantor shall cause each
other Loan Party to perform all obligations and agreements of such Loan Party
contained in the Credit Agreement or any other Loan Document in accordance with
the terms thereof
9. Assumption of Liens and Indebtedness. To the extent that
the Guarantor has received or shall hereafter receive contributions to its
capital consisting of assets of the Debtor that are subject, at the time of such
contribution, to liens and security interests in favor of the Agent or the
Lenders in accordance with the Credit Agreement, the Guarantor hereby expressly
agrees that: (1) it shall hold such assets subject to such liens and security
interests and subject to the terms of the Credit Agreement; and (ii) it shall be
liable for the payment of the Indebtedness secured thereby, The Guarantor's
obligations under this Section 9 shall be in addition to its obligations as set
forth in other sections of this Guaranty and not in substitution therefor or in
lieu thereof
10. Parents. The Guarantor covenants and agrees that the
Obligations will be paid strictly in accordance with their respective terms
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Agent or the
Lenders with respect thereto. Without limiting the generality of the foregoing,
the Guarantor's obligations hereunder with respect to any Obligations shall not
be discharged by a payment in a currency other than the currency in which the
Obligations are denominated (the "Obligation Currency") or at a place other than
the place specified for the payment of the Obligations, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid on conversion to
the Obligation Currency and transferred to Chicago,, Illinois under normal
banking procedures, does not yield the amount of Obligation Currency due
thereunder.
11. Taxes. All payments hereunder shall be made without any
counterclaim or setoff, free and clear of, and without reduction by reason of,
any taxes, levies, imposts, charges and withholdings, restrictions or conditions
of any nature ("Taxes"), which are now or may hereafter be imposed, levied or
assessed by any country, political subdivision or taxing authority, all of which
will be for the account of and paid by the Guarantor. If for any reason, any
such reduction is made or any Taxes are paid by the Agent or the Lenders, the
Guarantor will pay to the Agent or the Lenders such additional amounts as may be
necessary to ensure that the Agent or the Lenders receives the same net amount
which they would have received had no reduction been made or Taxes paid.
12. Miscellaneous.
(a) The terms "Debtor" and the "Guarantor" as used in
this Guaranty shall include: (i) any successor individual or
individuals, association, partnership or corporation to which all or a
substantial part of the business or assets of the Debtor or the
Guarantor shall have been transferred; and (ii) any other corporation
into or with which the Debtor or the Guarantor shall have been merged,
consolidated, reorganized or absorbed.
(b) Without limiting any other right of the Agent of
the Lenders, whenever the Agent or the Lenders have the right to
declare any of the Indebtedness to be immediately due and payable
(whether or not it has been so declared), the Lenders at their sole
election without notice to the undersigned may appropriate and set off
against the Indebtedness: (i) any and all indebtedness or other monies
due or to become due to the Guarantor by the Agent or any of the
Lenders in any capacity; and (ii) any credits or other property
belonging to the Guarantor (including all account balances, whether
provisional or final and whether or not collected or available) at any
time held by or coming into the possession of the Agent or any of the
Lenders, or any affiliate of the Agent or any of the Lenders, whether
for deposit or otherwise, whether or not the Indebtedness or the
obligation to pay such monies owed by the Agent or the Lenders is
then due, and the Agent or the Lenders shall be
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deemed to have exercised such right of set off immediately at the time
of such election even though any charge therefor is made or entered on
the Agent's or the Lender's records subsequent thereto.
(c) The Guarantees obligation hereunder is to pay the
Indebtedness in fill] when due according to the Credit Agreement to the
extent provided herein, and shall not be affected by any stay or
extension of time for payment by the Debtor resulting from any
proceeding under the United States Bankruptcy Code or any similar law
(d) The Agent or the Lenders shall not by any act,
delay, omission or otherwise be deemed to have waived any of their
remedies hereunder, and no waiver by the Agent or the Lenders shall be
valid unless in writing and signed by the Agent or the Lenders and then
only to the extent therein set forth. A waiver by the Agent or the
Lenders of any right or remedy hereunder on any one occasion shall not
be construed as a bar to any right or remedy which the Agent or the
Lenders would otherwise have on any further occasion, No course of
dealing between the Guarantor and the Agent or the Lenders and no
failure to exercise, nor any delay in exercising on the part of the
Agent or the Lenders, any night, power or privilege hereunder or under
the Credit Agreement shall impair such right or remedy or operate as a
waiver thereof, nor shall any single or partial exercise of any night,
power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other fight, power or privilege. The
fights and remedies herein provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any fights or remedies
provided by law
(e) The term "Lenders" as used herein shall have the
same meaning as in the Credit Agreement and this Guaranty shall inure
to the benefit of the Agent and the Lenders under the Credit Agreement
(f) Section headings in this Guaranty are included
herein for convenience of reference only and shall not constitute a
part of this Guaranty for any other purpose or be given any substantive
effect
(g) THE GUARANTOR AGREES THAT ANY ACTION OR
PROCEEDING ARISING OUT OF OR TO ENFORCE THIS GUARANTY MAY BE COMMENCED
IN THE FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, OR
IF SUCH COURT DENIES JURISDICTION, IN THE CIRCUIT COURT OF COOK COUNTY,
ILLINOIS, AND THE GUARANTOR WAIVES PERSONAL SERVICE OF PROCESS AND
AGREES THAT A SUN"*IONS AND COMPLAINT COMMENCING AN ACTION OR
PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFER
PERSONAL JURISDICTION IF SERVED BY MESSENGER OR REGISTERED MAIL TO THE
GUARANTOR AND, IF BY REGISTERED MAUL, SERVICE SO MADE SHALL BE DEEMED
TO BE COMPLETED THREE (3) DAYS AFTER THE SAME SHALL HAVE BEEN POSTED,
OR AS OTHERWISE PROVIDED BY THE LAWS OF ]ILLINOIS OR THE UNITED STATES.
(h) Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition, and any
such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
(i) THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS.
13. Notices. Unless otherwise specifically provided herein,
any notice or other communication required or permitted to be given shall be in
writing addressed to the respective party as set forth below and may be
personally served, telecopied or sent by overnight courier service or United
States mail certified or registered and shall be deemed to have been given (a)
if delivered in person, when delivered; (b) if delivered by telecopy, on the
date of transmission if transmitted on a Business Day before 5:00 p.m. (Chicago
time) or, if not, on the next succeeding Business Day, (c) if delivered by
overnight courier, two Business Days
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after delivery to such courier properly addressed; or (d) if by United States
mail, four Business Days after depositing in the United States mail, with
postage prepaid and properly addressed.
Notices shall be addressed as follows:
(a) If to Guarantor
Protection One, Inc.
3900 5.W. Murray Boulevard
Beaverton, Oregon 97005
Attn John W. Hesse
With a copy to
Protection One, Inc.
6011 Bristol Parkway
Culver City, Los Angeles, California 90230
Attn James W. MacKenzie, Jr., President
(b) If to Agent
Heller Financial, Inc.
500 West Monroe Street
Chicago, Illinois 60661
Attn: Portfolio Manager
Portfolio Organization
Corporate Finance Group
Telecopy: (312) 441-7367
With a copy to:
Heller Financial, Inc.
500 West Monroe Street Chicago, Illinois 60661
Attn: Leo Department
Portfolio Organization
Corporate Finance Group
Telecopy: (312) 441-7367
or in any case, to such other address as the party addressed shall have
previously designated by written notice to the serving party, given in
accordance with this Section
14. A notice not given as provided above shall, if it is in
writing, be deemed given if and when actually received by the party to whom
given
15. Waivers.
(a) THE GUARANTOR WAIVES THE BENEFIT OF ALL
VALUATION, APPRAISAL AND EXEMPTION LAWS.
(b) IN THE EVENT OF A DEFAULT UNDER THE CREDIT
AGREEMENT, THE GUARANTOR HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING
OF ANY KIND PRIOR TO THE EXERCISE BY THE AGENT OR THE LENDERS OF THEIR
RIGHTS TO REPOSSESS THE COLLATERAL WITHOUT JUDICIAL PROCESS OR TO
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REPLEVY, ATTACH OR LEVY UPON THE COLLATERAL WITHOUT PRIOR NOTICE OR
HEARING. THE GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL
OF ITS CHOICE WITH RESPECT TO THIS TRANSACTION AND THIS GUARANTY.
(c) THE GUARANTOR AND AGENT ACKNOWLEDGE THAT THE TIME
AND EXPENSE REQUIRED FOR TRIAL BY JURY EXCEED THE TIME AND EXPENSE
REQUIRED FOR A BENCH TRIAL AND HEREBY WAIVE, TO THE EXTENT PERMITTED BY
LAW, TRIAL BY JURY. THE GUARANTOR HEREBY WAIVES, TO THE EXTENT
PERMITTED BY LAW, ANY OBJECTION BASED ON FORUM NON CONVENIENS, ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER, AND WAIVES ANY
BOND OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER BE
REQUIRED OF THE AGENT OR THE LENDERS.
(d) THE GUARANTOR HEREBY WAIVES ANY RIGHT TO REQUIRE
A PROCEEDING FIRST AGAINST THE DEBTOR OR RIGHT TO REQUIRE THE PRIOR
DISPOSITION OF THE ASSETS OF THE DEBTOR TO MEET ITS OBLIGATIONS AND
COVENANTS THAT THIS GUARANTY WILL NOT BE DISCHARGED EXCEPT BY COMPLETE
PERFORMANCE OF THE OBLIGATIONS OF THE DEBTOR UNDER THE CREDIT
AGREEMENT.
16. Effect of Restatement. This Guaranty amends, restates and
supersedes that certain Guaranty dated as of November 3, 1993, by guarantor in
favor of Agent (the "Existing Guaranty"); provided, that all references in the
other Loan Documents to the Existing Guaranty shall be deemed to refer without
amendment to this Guaranty.
IN WITNESS WHEREOF, this Guaranty has been executed as of the
day first written above.
PROTECTION ONE, INC
By: JOHN W. HESSE
______________________________
Title: Executive Vice President
______________________________
Accepted and Agreed to as
of the day first written above.
HELLER FINANCIAL, INC.,
individually and as Agent for
the Lenders
By: TIMOTHY CANON
________________________
Title: Vice President
_________________________
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