This NonDisclosure Agreement NDA involves
Title: NONSOLICITATION, NONCOMPETITION AND NONDISCLOSURE AGREEMENT (NEWCO AS ADDITIONAL BORROWER)
Governing Law: New York Date: 11/5/2010
Law Firm: Buchanan Ingersoll;Hanson Bridgett
NONSOLICITATION, NONCOMPETITION AND NONDISCLOSURE AGREEMENT
(NEWCO AS ADDITIONAL BORROWER)
This Nonsolicitation, Noncompetition and Nondisclosure Agreement (this “Agreement”) is made as of this 20th day of October, 2010, between between SIEMENS FIRST CAPITAL COMMERCIAL, LLC, a Delaware limited liability company (as “Agent”), and CASTLEROCK SECURITY HOLDINGS, INC ., a Delaware corporation (“NewCo”).
STATEMENT OF FACTS
A. All capitalized terms used in this Agreement and not otherwise defined have the meanings given them in that certain Credit Agreement dated May 25, 2007, as amended, among Agent, Lenders now or hereafter party thereto, NewCo and Alarm Funding, LLC, a Delaware limited liability company (“Alarm Funding” and together with NewCo, the “Borrower”) (as further amended, modified, restated or supplemented from time to time, the “Credit Agreement”). The rules of construction set forth in Section 1.2 [Construction] of the Credit Agreement shall apply to this Agreement.
B. Pursuant to the Credit Agreement, Lenders have agreed to provide the Loans and grant other financial accommodations to Borrower.
C. In consideration of Lenders’ willingness to continue the Loans and grant other financial accommodations to Borrower, NewCo has granted Lenders a continuing security interest in the Collateral, including all of the customer accounts of NewCo.
D. As further consideration for Lender’s willingness to provide the Loans and other financial accommodations to Borrower, NewCo, as an “Additional Borrower” pursuant to that certain Borrower Joinder and Assumption Agreement by NewCo dated as of the date hereof, is entering into this Agreement.
E. NewCo acknowledges and agrees that the following legitimate business interests justify this Agreement:
· NewCo possesses confidential, proprietary and valuable trade secrets;
· NewCo possesses valuable and confidential business information;
· NewCo has substantial relationships with specific prospective and existing customers and vendors; and
· NewCo has substantial customer and vendor goodwill associated with an ongoing business and trade name.
NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, receipt of which is acknowledged, the parties, intending to be legally bound, covenant and agree as follows:
1. Nonsolicitation and Nonacceptance .
If any Event of Default shall have occurred which results in the acceleration of the Loans and subsequent foreclosure of the Collateral by Agent, NewCo agrees not to, for a period of 7 years from the date of such acceleration and foreclosure, for itself, as an agent or on behalf of any person, association, partnership or corporation, either directly or indirectly, solicit or attempt to obtain business from, accept business from, or do business with or service or indirectly aid or assist anyone else in the solicitation or acceptance of business from, any of the customers or accounts included as part of the Collateral pursuant to the Credit Agreement for the purpose of providing electronic security services, retail or wholesale alarm monitoring services, inspection, access control, maintenance, or related services (collectively, the “Services”). This provision applies both to the customers and the residence or place of business occupied by such customers. In the event NewCo is contacted by such customers, it will inform such customers that it cannot provide the Services to such customers. In addition, NewCo agrees that it will never disparage the services, business or reputation of Agent, Lenders or the entities to whom the Collateral is assigned whether by making false or misleading statements to another person or otherwise.
2. Noncompetition . If any Event of Default shall have occurred which results in the acceleration of the Loans and subsequent foreclosure of the Collateral by Agent, NewCo agrees that it will not, either directly or indirectly, for a period of 5 years from the date of such acceleration and foreclosure of the Collateral, take any action in competition with the Security Business as operated and/or owned by NewCo, Agent or the entities to whom the Collateral is assigned within any state in which NewCo has customers. Without limiting the generality of the foregoing, NewCo will not, either directly or indirectly, within the proscribed geographic area:
(a) manage, operate, join, control, participate or become interested in or be connected with, as an agent, partner, stockholder, investor or otherwise, any business providing any of the Services;
(b) lend its credit or money for the purpose of establishing or operating any business providing any of the Services;
(c) furnish consultation or advice to any business providing any of the Services;
(d) permit its name or any names confusingly similar to its name, Agent or the entities to whom the Collateral is assigned to be used in connection with any business providing any of the Services; or
(e) sell or rent any equipment ancillary or necessary to any business providing any of the Services.
3. Nondisclosure .
NewCo acknowledges that it possesses certain confidential, proprietary and trade secret information, materials and business concepts with respect to the Collateral, including
information regarding marketing, sales volume, sales methods, sales proposals, products, services, dealer programs, prospective and pending acquisitions, vendors, customer lists and files, and other confidential customer information (including current, prospective and former customers), accounting data and methods, operating procedures, pricing policies, strategic plans, intellectual property, customer contracts and other agreements, manufacturer’s warranties, information about NewCo’s employees, or other confidential or proprietary information belonging to or related to NewCo ‘s affairs (collectively, the “Proprietary Information”). If any Event of Default shall have occurred which results in the acceleration of the Loans and subsequent foreclosure of the Collateral, NewCo agrees: (a) never to publish, copy, disclose, allow to be disclosed, or use for its own benefit or for the benefit of any other person, firm, corporation or entity, the Proprietary Information without the prior written consent of Agent, which can be withheld in Agent’s sole discretion, provided , however , NewCo may disclose the Proprietary Information to NewCo’s accountants, auditors, administrators, investors and their professional advisors, and any regulators reasonably believed to have jurisdiction; and (b) to maintain strictly the confidentiality of the Proprietary Information at all times. NewCo agrees to take all necessary precautions to protect the Proprietary Information from unauthorized disclosure or use. NewCo acknowledges and agrees that in any proceeding to enforce this Agreement it will be presumed that the Proprietary Information constitutes protectable trade secrets, and that NewCo will bear the burden of proving that any portion of the Proprietary Information was publicly or rightfully known and disclosed by NewCo. Upon the request of Agent, NewCo agrees to execute and deliver to Agent an affidavit as to the complete and proper return of all Proprietary Information. “Proprietary Information” shall not include: (i) information that is generally available to the public through no fault of NewCo; (ii) information that is required to be disclosed by NewCo by law, subpoena or court order, provided NewCo promptly notifies Agent prior to such disclosure in order to permit Agent time to seek a protective order; or (iii) information used by NewCo to enforce or defend a claim under this Agreement or used by NewCo to enforce or defend any claim under any other Credit Document.
4. Independent Contractors and Employees .
For a period of 3 years following an Event of Default which results in acceleration of the Loans and subsequent foreclosure of the Collateral by Agent, NewCo will not, directly or indirectly, individually or through any other entity or otherwise, without the prior written consent of Agent, which can be withheld in Agent’s sole discretion, knowingly take any action detrimental to the relationship between any of the former independent contractors or employees of NewCo and the entities to whom the Collateral is assigned if such entities are currently employing such independent contractors or employees.
5. Acknowledgment .
NewCo acknowledges and recognizes that: (a) this Agreement is necessary for the protection of the legitimate business interests of Lenders in making the Loans and other financial accommodations to Borrower contemplated by the Credit Agreement and the other Credit Documents; (b) the execution and delivery of this Agreement is a mandatory condition precedent to the closing of the transactions contemplated by the Credit Agreement and the other Credit Documents, without which such transactions will not close; (c) the enforcement of this
Agreement is unrelated to, independent from and unaffected by any dispute that may arise under the Credit Agreement or the other Credit Documents; (d) the scope of this Agreement regarding duration, geographic area and the level of activities restricted is reasonable; (e) NewCo has no intention of violating this Agreement; and (f) the breach of this Agreement will be such that Lenders will not have an adequate remedy at law because of the uniq