Exhibit 10.31
THIRD AMENDMENT TO
REVOLVING CREDIT AGREEMENT,
JOINDER, LIMITED CONSENT AND WAIVER
Third Amendment to Revolving Credit
Agreement, Joinder, Limited Consent and Waiver dated as of December
9, 2004 (the “ Third Amendment ”), by and
among LIFELINE SYSTEMS COMPANY (f/k/a LIFELINE SYSTEMS,
INC.) , a Massachusetts corporation (the “
Borrower ”), LIFELINE SYSTEMS, INC. (f/k/a LIFELINE
HOLDINGS, INC.) , a Massachusetts corporation (the “
Parent ”) CITIZENS BANK OF MASSACHUSETTS and
the other lending institutions listed on Schedule 1
to the Credit Agreement (as hereinafter defined) (the “
Lenders ”), amending and waiving certain provisions of
the Revolving Credit Agreement, dated as of August 28, 2002 (as
amended and in effect from time to time, the “ Credit
Agreement ”) by and among the Borrower, the Lenders
and CITIZENS BANK OF MASSACHUSETTS , as administrative agent
for the Lenders (in such capacity, the “
Administrative Agent ”) as more fully set forth
herein. Terms not otherwise defined herein which are defined in the
Credit Agreement shall have the same respective meanings herein as
therein.
WHEREAS , the Borrower has informed the Administrative
Agent and the Lenders that it has consummated a share exchange
pursuant to which all of the holders of the Borrower’s
Capital Stock immediately prior to the effective date of the share
exchange have exchanged such shares of the Borrower’s Capital
Stock for the Capital Stock of the Parent, and, in connection
therewith, the Borrower has become a Subsidiary of the Parent (such
transaction being hereinafter referred to as the “
Exchange Offer ”); and
WHEREAS , the Parent wishes to become a party to the
Credit Agreement; and
WHEREAS , the Borrower and the Lenders have agreed to
modify certain terms and conditions of the Credit Agreement as
specifically set forth in this Third Amendment and the Lenders have
agreed to waive certain other provisions of the Credit Agreement as
specifically set forth in this Third Amendment and the Lenders have
agreed to consent to certain actions as specifically set forth in
this Third Amendment;
NOW, THEREFORE
, in consideration of the premises
and the mutual agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
§1. Amendment
to §1 of the Credit
Agreement . Section 1.1 of the Credit Agreement is hereby
amended as follows:
(a) The definition of
“Applicable Margin” is hereby amended by deleting the
words “the Borrower and its Subsidiaries” which appear
in such definition and substituting in place thereof the words
“the Parent and its Subsidiaries”.
(b) the definition of
“Applicable Pension Legislation” is hereby amended by
deleting the words “the Borrower or any of its
Subsidiaries” which appear in such definition and
substituting in place thereof the words “the Parent or any of
its Subsidiaries”.
(c) the definition of “Capital
Expenditures” is hereby amended by deleting each reference to
“the Borrower or any of its Subsidiaries” which appear
in such definition and substituting in place thereof the words
“the Parent or any of its Subsidiaries”.
(d) the definition of “Change
of Control” is hereby amended by deleting such definition in
its entirety and restating it as follow:
Change of Control . An event or series of
events by which (a) any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of 1934)
shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act), directly or indirectly, of thirty percent (30%) or
more of the outstanding shares of Capital Stock of the Parent; or,
during any period of twelve consecutive calendar months,
individuals who were directors of the Parent on the first day of
such period shall cease to constitute a majority of the board of
directors of the Parent; or (b) the Parent shall fail to own
directly or indirectly, one hundred percent (100%) of the Capital
Stock of the Borrower and each Guarantor (other than
itself).
(e) The definitions of
“Capital Leases”, “Consolidated or
consolidated”, “Consolidated Current Assets”,
“Consolidated Current Liabilities”, “Consolidated
Net Income”, “Consolidated Tangible Net Worth”,
“Consolidated Total Assets”, “Consolidated Total
Debt Service”, “Consolidated Total Funded
Indebtedness”, “Consolidated Total Interest
Expense”, “Consolidated Total Liabilities”,
“Consolidated US EBITDA”, “Consolidated US Net
Income (or Deficit)”, “Consolidated US Total Interest
Expense”, “Foreign Operating Subsidiary”,
“Hedging Agreement”, “Indebtedness”,
“Obligations”, “Real Estate”,
“Reference Period” and “Unfunded Capital
Expenditures” are hereby amended by deleting each reference
to “Borrower” in each such definition and substituting
in each place thereof the word “Parent”.
(f) The definition of
“Consolidated EBITDA” is hereby amended by (i) deleting
the word “Borrower” which appears in such definition
and substituting in place thereof the word “Parent”;
and (ii) deleting the word “Borrower’s” which
appears in such definition and substituting in place thereof the
word “Parent’s”.
(g) The definition of
“Consolidated Operating Cash Flow” is hereby amended by
(i) deleting the words “expenditures made by the Borrower or
any Subsidiary” which appear in such definition and
substituting in place thereof the words “expenditures made by
the Parent or any Subsidiary”; (ii) deleting the words
“of a Foreign Operating Subsidiary to the Borrower
or
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any Guarantor” which appear in such
definition and substituting in place thereof the words “of a
Foreign Operating Subsidiary to the Parent, the Borrower or any
Guarantor”; and (iii) deleting the words “plus all
Investments made by the Borrower or a Guarantor” which appear
in such definition and substituting in place thereof the words
“plus all Investments made by the Parent, the Borrower or a
Guarantor”.
(h) the definition of
“Distribution” is hereby amended by deleting each
reference to “of the Borrower” which appears in such
definition and substituting in place thereof the words “the
Parent or the Borrower”.
(i) the definitions of
“Employee Benefit Plan, “ERISA Affiliate”,
“Guaranteed Pension Plan” and “Multiemployer
Plan” are each hereby amended by inserting immediately before
the words “the Borrower” in each place in which such
words appear in each such definition the words “the
Parent,”.
(j) the definition of
“Guarantor” is hereby amended by deleting the words
“of the Borrower existing” which appear in such
definition and substituting in place thereof the words “of
the Parent (other than the Borrower) existing”.
(k) the definition of
“Material Adverse Effect” is hereby amended by (i)
deleting the words “individually or the Borrower and its
Subsidiaries, taken as a whole” which appear in subparagraph
(a) of such definition and substituting in place thereof the words
“individually or the Parent and its Subsidiaries, taken as a
whole”; and (ii) deleting the word “Borrower”
which appears in subparagraph (b) of such definition and
substituting in place thereof the word
“Parent”.
(l) the definition of “Pro
Forma Basis” is hereby amended by (i) deleting the words
“Borrower and its Subsidiaries” which appear in such
definition and substituting in place thereof the words
“Parent and its Subsidiaries”; and (ii) deleting the
words “the Borrower or Subsidiary effecting the
acquisition” which appear in such definition and substituting
in place thereof the words “the Parent or Subsidiary
effecting the acquisition”.
(m) the definition of
“Restricted Payment” is hereby amended by (i) deleting
each reference to “Borrower” contained in such
definition and substituting in place thereof the word
“Parent”; and (ii) deleting the word
“Borrower’s” which appears in such definition and
substituting in place thereof the word
“Parent’s”.
§2. Amendment
to §7 of the Credit
Agreement . Section 7 of the Credit Agreement is hereby
amended as follows:
(a) The first sentence of Section 7
of the Credit Agreement is hereby amended by deleting the words
“The Borrower represents and warrants” which appear in
such first sentence and substituting in place thereof the words
“Each of the Parent and the Borrower represents and
warrants”.
(b) Sections 7.1, 7.2, 7.3, 7.4.1.,
7.4.3, 7.6, 7.7, 7.9, 7.10, 7.12, 7.13, 7.20 and 7.22 of the Credit
Agreement are each hereby amended by deleting each reference to
“Borrower” which
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appears in each of §§7.1, 7.2, 7.3,
7.4.1., 7.4.3, 7.6, 7.7, 7.9, 7.10, 7.12, 7.13, 7.20 and 7.22 and
substituting in each place thereof the word
“Parent”.
(c) Section 7.5 of the Credit
Agreement is hereby amended by deleting the words “the
Borrower has not made any Restricted Payments” which appear
in §7.5 and substituting in place thereof the words
“neither the Parent nor the Borrower has made any Restricted
Payments”.
(d) Section 7.8 of the Credit
Agreement is hereby amended by (i) deleting each reference to
“Borrower” which appears in §7.8 and substituting
in place thereof the word “Parent”; and (ii) deleting
the word “Borrower’s” which appears in §7.8
and substituting in place thereof the word
“Parent’s”.
(e) Section 7.14 of the Credit
Agreement is hereby amended by deleting the text of §7.14 in
its entirety and restating it as follows: “Each of the Parent
and the Borrower are the owners of their respective property and
assets free from any Lien, except for Permitted
Liens.”
(f) Section 7.15 of the Credit
Agreement is hereby amended by deleting the first four references
to “Borrower” which appear in §7.15 and
substituting in each place thereof the word
“Parent”.
(g) Section 7.16 of the Credit
Agreement is hereby amended by (i) inserting before the words
“the Borrower” which appear in §7.16.2 the words
“the Parent or” and (ii) §7.16.4 of the Credit
Agreement is hereby amended by inserting before the words
“the Borrower” in each place in which such words appear
in §7.16.4 the words “the Parent,”.
(h) Section 7.18 of the Credit
Agreement is hereby amended by (i) deleting the words “The
Borrower has taken” which appear in §7.18 and
substituting in place thereof the words “The Parent and the
Borrower have taken”; (ii) deleting each reference to
“Borrower” which appears in subparagraphs (a), (b), (c)
and (d) of such §7.18 and substituting in each such place the
word “Parent”; and (iii) deleting the words “to
the best of the Borrower’s knowledge” which appears in
subparagraph (c) of §7.18 and substituting in place thereof
the words “to the best of the Parent’s and the
Borrower’s knowledge”.
(i) Section 7.19 of the Credit
Agreement is hereby amended by (i) inserting immediately prior to
the first sentence thereof the words “PROTECT and Lifeline
Systems Securities Corporation are the only direct Subsidiaries of
the Parent, and the Borrower is the only direct Subsidiary of
PROTECT.”; (ii) deleting the words “Lifeline Systems
Securities Corporation,” which appear in the first sentence
of §7.19; and (iii) deleting each reference to
“Borrower” which appear in the second and third
sentences of §7.19 and substituting in each place thereof the
word “Parent”.
§3. Amendment
to §8 of the Credit
Agreement . Section 8 of the Credit Agreement is hereby
amended as follows:
(a) The first sentence of Section 8
of the Credit Agreement is hereby amended by deleting the words
“The Borrower covenants and agrees” which appear in
such first sentence
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and substituting in place thereof the words
“Each of the Parent and the Borrower covenants and
agrees”.
(b) Section 8.1 of the Credit
Agreement is hereby amended by deleting the words “to which
the Borrower or any of its Subsidiaries is a party” which
appear in §8.1 and substituting in place thereof the words
“to which the Parent or any of its Subsidiaries is a
party”.
(c) Sections 8.3, 8.4(a), 8.4(b),
8.4(d), 8.4(e), 8.5.1., 8.5.2., 8.5.4., 8.6, 8.7, 8.8, 8.9, 8.10,
8.13, 8.15, 8.16, and 8.18 of the Credit Agreement are each hereby
amended by deleting each reference to “Borrower” which
appears in each such section and substituting in place thereof the
word “Parent”.
(d) Section 8.5.3 of the Credit
Agreement is hereby amended by inserting immediately before the
words “Borrower&
