Exhibit 10.15


 


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 


 


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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 


 


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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 unique nature of the
Collateral, and the Proprietary Information, and the confusion to customers and
the public that a breach would create.


 


6.                                       Representations.


 


NewCo
represents and warrants that:  (a) it
has the authority to enter into this Agreement, and that in doing so it will
not violate any agreement, order or law; and (b) there are no third-party
consents required for it to enter into this Agreement which have not been
obtained and delivered to Agent.


 


7.                                       Remedies.


 


NewCo
acknowledges and agrees that the rights of Agent under this Agreement are of a
specialized and unique character and that immediate and irreparable damage will
result to Lenders and the Collateral if NewCo fails to or refuses to perform
its obligations under this Agreement and, notwithstanding any election by Agent
to claim damages from NewCo as a result of any such failure or refusal, Agent
may, in addition to any other remedies and damages available, seek an
injunction in a court of competent jurisdiction, without the posting of a bond
or other security to restrain any such failure or refusal.  NewCo further acknowledges that the
obligations set forth in Sections 1, 2 and 4 of this Agreement will be extended
by the length of time during which NewCo is in breach of any of these
obligations. These remedies are cumulative with all other remedies provided by
law or contract, and will not preclude Agent from later obtaining a judgment
for money damages or specific acts against NewCo or otherwise affect any other
remedies that Agent may have.  The
exercise of any right or remedy will be without prejudice to the right to
exercise any other right or remedy provided in this Agreement, by law or in
equity.  In any action by Agent to
enforce its rights under this Agreement, any claims asserted by NewCo against
Agent will not constitute a defense to Agent’s enforcement action.


 


8.                                       Severability.


 


If
any provisions of this Agreement as applied to any part or to any circumstances
are adjudged by a court to be invalid or unenforceable, the same will in no way
affect any other provision of this Agreement, the application of such provision
in any other circumstances, or the validity or enforceability of this
Agreement.  Agent and NewCo intend this
Agreement to be enforced as written.  If
any provision or any part of this Agreement is held to be invalid or
unenforceable because of its scope, geographic area or duration, the parties
agree that the court making such determination will have the power to delete
specific words or phrases and in its modified form such provision will then be
enforceable.  The foregoing clause is not
intended to be an admission or evidence that the scope or duration of this
Agreement is unreasonable.


 


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9.                                       Consent to
Jurisdiction, Service and Venue.


 


For
the purpose of any suit, action or proceeding arising out of or relating to
this Agreement, NewCo irrevocably consents and submits to the jurisdiction and
venue of any state or federal court of competent jurisdiction sitting in the
New York, New York.  NewCo agrees that
service of the summons and complaint and all other process which may be served
in any such suit, action or proceeding may be effected by mailing by registered
mail a copy of such process to NewCo at the address set forth in Section 11.  NewCo irrevocably waives any objection which
it may now or hereafter have to the venue of any such suit, action or
proceeding brought in such court and any claim that such suit, action or
proceeding brought in such court has been brought in an inconvenient forum and
agrees that service of process in accordance with this Section will be
deemed in every respect effective and valid personal service of process upon
NewCo.  Nothing in this Agreement will be
construed to prohibit service of process by any other method permitted by
law.  The provisions of this Section will
not limit or otherwise affect the right of Agent to institute and conduct an
action in any other appropriate manner, jurisdiction or court.  NewCo agrees that final judgment in such
suit, action or proceeding will be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by law.


 


10.                                 WAIVER OF JURY TRIAL.


 


AGENT AND NEWCO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND
ALL RIGHT TO A TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS AGREEMENT.  IN SO DOING, EACH PARTY INTENDS THAT ANY
CLAIMS AND DISPUTES ARISING HEREUNDER WILL BE RESOLVED BY A JUDGE ACTING
WITHOUT A JURY IN ORDER TO AVOID THE DELAYS, EXPENSES AND RISKS OF MISTAKEN
INTERPRETATION THAT EACH PARTY ACKNOWLEDGES ARE MORE LIKELY WITH A JURY TRIAL
THAN WITH A NON-JURY TRIAL.


 


11.                                 Notices.


 


All
notices or other communications required or permitted hereunder will be in
writing and will be deemed given when delivered:  (a) personally; (b) by registered
or certified mail (postage prepaid); (c) by legible facsimile
transmission; or (d) by overnight courier (fare prepaid), in all cases addressed
as follows:


 


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  If
  to Agent, to:

  	
   

  	
  With
  a copy to:

  
	
   

  	
   

  	
   

  
	
  FCC,
  LLC

  3520
  N.W. 58th Street

  Oklahoma
  City, OK 73112

  Attn:
  Lee Elmore, Senior Vice President

  Facsimile:
  (405) 917-9660

  	
   

  	
  Buchanan
  Ingersoll & Rooney PC

  One
  Oxford Centre, 20th Floor

  Pittsburgh, PA 15219

  Attn:
  Hugh G. Van der Veer 

  Facsimile:
  (412) 562-1041

  
	
   

  	
   

  	
   

  
	
  If
  to NewCo, to:

  	
   

  	
  With
  a copy to:

  
	
   

  	
   

  	
   

  
	
  c/o
  Alarm Funding, LLC

  800
  Connecticut Avenue, Suite E-403

  Norwalk,
  CT 06854

  Attn:
  Westin Lovy, Managing Director

  Facsimile:
  (203) 656-1994

  	
   

  	
  Hanson
  Bridgett LLP

  425
  Market Street, 26th Floor

  San
  Francisco, CA 94105

  Attention:
  Michael Y. Lateef

  Facsimile:
  415-541-9366

  



 


Notice
will be deemed received the same day (when delivered personally), 5 days after
mailing (when sent by registered or certified mail), or the next Business Day
(when sent by facsimile transmission or when delivered by overnight courier).
Either party to this Agreement may change its address to which all
communications and notices may be sent by addressing notices of such change in
the manner provided.


 


12.                                 Entire Agreement.


 


This
Agreement is an integrated document, contains the entire agreement between the
parties, and wholly cancels, terminates and supersedes any and all previous and/or
contemporaneous oral agreements, negotiations, commitments and writings between
the parties with respect to this subject matter, except for the Credit
Agreement and the other Credit Documents. 
No change, modification, extension, termination, discharge, abandonment
or waiver of this Agreement or any of its provisions, nor any representation,
promise or condition relating to this Agreement, will be binding upon the
parties unless made in writing and signed by the parties.  The parties further agree that the prior
drafts of this Agreement will not be used to interpret this Agreement and will
not be admissible into evidence at any time.


 


13.                                 Interpretation.


 


The
descriptive headings of the Sections are for ease of reference only and will in
no way affect or be used to construe or interpret this Agreement.  All references to Sections in this Agreement
are references to the Sections of this Agreement.  The terms and conditions of this Agreement
will not be construed against their drafter. 
If any provision in this Agreement refers to any action taken or to be
taken or which is prohibited from being taken, the provision


 


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will
be applicable whether the action is taken directly or indirectly, whether or
not expressly specified in the provision.


 


14.                                 Waiver.


 


No
waiver of any right or remedy allowed hereunder will be implied by the failure
to enforce any such right or remedy.  No
express waiver will affect any such right or remedy other than that to which
the waiver is applicable and only for that specific occurrence.


 


15.                                 Parties in Interest.


 


This
Agreement is binding upon and inures to the benefit of Agent and its successors
and assigns and the successors and permitted assigns of NewCo.


 


16.                                 Assignment.


 


Agent
has the right to assign this Agreement to any third party without the consent
of NewCo.  NewCo has no right to
assign this Agreement.


 


17.                                 Governing Law.


 


This
Agreement and the rights and the obligations of the parties shall, pursuant to
New York General Obligations Law Section 5-1401, for all purposes be
governed by, and construed and enforced in accordance with, the laws of the
State of New York.


 


18.                                 Incorporation by Reference.


 


Any
and all recitals, statements (including the Statement of Facts), reports,
certificates or other documents or instruments referred to or attached to this
Agreement are incorporated by reference into this Agreement.


 


19.                                 Expenses.


 


NewCo
agrees to pay all of Agent’s costs and expenses incident to the negotiation and
preparation of this Agreement and to the performance and compliance with all
agreements and conditions contained herein on NewCo ‘s part to be performed or
complied with, including the fees and costs of Agent ‘s counsel and
accountants.  In addition, NewCo agrees
to pay all of Agent’s reasonable legal fees and costs in the event Agent must
enforce this Agreement, regardless of whether suit is filed.


 


20.                                 Counterparts; Telecopy.


 


This
Agreement may be executed in one or more counterparts, each of which when taken
together will comprise one instrument. 
Delivery of executed signature pages by facsimile or other
electronic transmission will constitute effective and binding execution and
delivery.


 


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21.                                 Further Assurances.


 


Upon
Agent’s request, NewCo will do or cause to be done such further acts or things
as Agent may reasonably request to accomplish the intent of this Agreement.


 


22.                                 Consultation.


 


NewCo
acknowledges that it has carefully read and fully understood all of the
provisions of this Agreement and had an opportunity to consult with its
attorneys prior to executing this Agreement.


 


23.                                 Related Entities.


 


Nothing
in this Agreement shall be deemed to prohibit Whitecap (US) Fund I, L.P. from
creating an additional entity for the purpose of entering the security alarm
business and purchasing security alarm accounts, so long as such entity is
separate from NewCo, Alarm Funding, CastleRock, and the Permitted Subsidiaries,
operates under a different name, and is not a party to the CastleRock Servicer
Agreements, and no customers or contracts are transferred from Borrower,
CastleRock or any Permitted Subsidiary to such new entity.  Notwithstanding the foregoing, NewCo
acknowledges that NewCo would be in violation of this Agreement if such an
entity, as an Affiliate of NewCo, were to breach any of the covenants set forth
in Sections 1, 3 or 4 of this Agreement.


 


 


[SIGNATURE PAGE FOLLOWS]


 


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[SIGNATURE PAGE 1 OF 1 TO NONSOLICITATION, NONCOMPETITION


AND NONDISCLOSURE AGREEMENT - BORROWER]


 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the date first written above.


 


 


	
   

  	
   

  	
   

  	
  AGENT:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  SIEMENS
  FIRST CAPITAL COMMERCIAL FINANCE, LLC, as Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /
  s / Anthony Casciano

  	
   

  	
  By:
  

  	
  /
  s / Matthew R. Begley

  
	
  Name:
  

  	
  Anthony
  Casciano

  	
  and

  	
  Name:
  

  	
  Matthew
  R. Begley

  
	
  Title:
  

  	
  Senior
  Vice President

  	
   

  	
  Title:
  

  	
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  ADDITIONAL
  BORROWER:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CASTLEROCK
  SECURITY HOLDINGS, INC.,

  
	
   

  	
   

  	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:
  

  	
  /
  s / Brian E. Johnson

  
	
   

  	
   

  	
   

  	
   

  	
  Brian E. Johnson, President