GUARANTY REIMBURSEMENT AGREEMENT
THIS GUARANTY REIMBURSEMENT AGREEMENT (this "Agreement"), dated as of
December 17, 2001, is between Ultrak, Inc., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxx ("Xxxxxx").
RECITALS. The Company has been attempting to restructure the
indebtedness related to its headquarters facility in Lewisville, Texas (the
"Facility") for over a year. The Facility is owned by Ultrak Operating, L.P.,
a Texas limited partnership that is indirectly owned by the Company ("UOLP").
UOLP has negotiated the sale of the Facility to Briarwood Waters Ridge, L.P.
("Buyer/Lessor") pursuant to that certain Contract of Sale between UOLP and
Buyer/Lessor. UOLP and Buyer/Lessor are also executing that certain Lease
Agreement (herein so called) whereby UOLP will lease the Facility from
Buyer/Lessor. In connection with the sale and leaseback, Buyer/Lessor has
required that Xxxxxx execute that certain Guaranty attached hereto as Exhibit
A (the "Guaranty"). The Guaranty creates a significant financial risk for
Xxxxxx and the Company has agreed to execute this Agreement and the Warrant
Agreement (as hereafter defined) in consideration of Xxxxxx executing the
Guaranty. Xxxxxx would not have executed the Guaranty without the Company's
execution of this Agreement and the Warrant Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, hereby covenant and agree
as follows:
1. Warrant Agreement. The Company agrees to deliver a Warrant
Agreement (the "Warrant Agreement"), to Xxxxxx whereby the Company will xxxxx
Xxxxxx warrants (the "Warrants") to acquire 200,000 shares of the Company's
Common Stock at a price per share of $1.64 for three (3) years. Because the
issuance of the Warrants to Xxxxxx shall cause Xxxxxx to be subject to
additional federal income taxes ("Taxes"), the Company shall, prior to the due
date for Xxxxxx to pay such Taxes (including any quarterly estimated Tax
payment date) resulting from the issuance of the Warrants to Xxxxxx, pay
Xxxxxx additional amounts as are necessary so that after taking into account
all Taxes on the issuance of the Warrants and all Taxes on such additional
payments to Xxxxxx, Xxxxxx will be in the same after-Tax position that he
would have been in if no Taxes were payable with respect to the Warrants.
2. Indemnification and Reimbursement. The Company hereby agrees to
indemnify, hold harmless, defend and promptly reimburse Xxxxxx, against any
losses, claims, damages, payments, or liabilities to which Xxxxxx may become
subject under the Guaranty.
3. Payment of Expenses. All costs and expenses of Xxxxxx in
connection with the Guaranty, this Agreement, and the Warrant Agreement,
including (but not limited to) fees and disbursements of counsel shall be
borne by the Company.
4. Affirmative and Negative Covenants.
Guaranty Reimbursement Agreement-- Page 1
(a) So long as Xxxxxx has any liability or obligation under the
Guaranty, unless Xxxxxx agrees otherwise in writing, the Company will:
(i) Promptly inform Xxxxxx of (A) any and all material adverse
changes in the Company's financial condition, and (B) all claims made
against the Company or any direct or indirect subsidiary of the
Company ("Subsidiary") which could materially adversely affect the
financial condition of the Company or any Subsidiary.
(ii) Promptly provide Xxxxxx with:
(A) Monthly and quarterly unaudited financial statements
as soon as available.
(B) Annual audited financial statements as soon as
available.
(C) Copies of each filing by the Company with the
Securities and Exchange Commission (the "SEC")
promptly after each such filing is made with the SEC.
(D) Notice of any event that has had, or could (with any
other event or events) be reasonably expected to have
a material adverse effect on the Company's assets,
liabilities, operations, financial condition, or
prospects.
(E) Copies of any notice of default received from any
lender.
(F) Copies of any notice of default received by the
Company or a Subsidiary with respect to any material
agreement or document.
(b) So long as Xxxxxx has any liability or obligation under the
Guaranty, the Company will not, without the prior written consent of Xxxxxx
(which consent shall not be unreasonably withheld or delayed):
(i) sell or transfer ownership (by merger or otherwise) of any
Subsidiary or assets with a sales price in excess of $500,000 (other
than sales of inventory in the ordinary course of business);
(ii) purchase or acquire the equity of any entity or assets from
any person or entity for more than $2,000,000 (other than purchases
of inventory in the ordinary course of business); or
(iii) merge or consolidate the Company with another entity in a
transaction with a value or contemplated value of more than
$2,000,000.
Guaranty Reimbursement Agreement-- Page 2
If Xxxxxx withholds consent to a proposed transaction covered by this
Section 4(b) (a "Covered Transaction"), and a majority of the Company's
Directors (excluding Xxxxxx Xxxxxx and any of his family members then serving
as Directors) determines (at a meeting or by written consent) that they feel
that Xxxxxx is being unreasonable in withholding his consent to a Covered
Transaction, then Xxxxxx shall be notified and the parties hereto irrevocably
agree that one individual (the "Arbitrator") shall determine if Xxxxxx is
unreasonably withholding his consent to the Covered Transaction. The
determination by the Arbitrator shall be final and binding and non-appealable.
The Arbitrator need not provide a written opinion or other writing supporting
the Arbitrator's decision. The only writing required from the Arbitrator shall
be a writing setting forth the Arbitrator's decision. If the Arbitrator
determines that Xxxxxx is unreasonably withholding Xxxxxx'x consent to a
Covered Transaction, then the Company shall be entitled to engage in such
Covered Transaction without Xxxxxx'x consent and without being in violation of
this Agreement. If the Arbitrator determines that Xxxxxx is reasonably
withholding Xxxxxx'x consent to a Covered Transaction, then the Company shall
not be entitled to engage in such Covered Transaction (unless Xxxxxx
subsequently consents to such Covered Transaction). The parties agree that, on
or before March 1, 2002, the parties shall execute a document agreeing to
three (3) people (the "Available Arbitrators") whom the parties irrevocably
agree can act as the Arbitrator. If the Directors determine that Xxxxxx is
unreasonably withholding consent to a Covered Transaction, then the Company
shall select the Arbitrator from among the Available Arbitrators.
5. Transfer of Option to Purchase. If Xxxxxx has to pay, on a
cumulative basis, at least $180,000 (the "Trigger Amount") pursuant to the
Guaranty and Xxxxxx has not been fully reimbursed all of such Trigger Amount
within thirty (30) days after making the payment pursuant to the Guaranty that
caused Xxxxxx to have cumulatively paid the Trigger Amount (such events are
referred to as the "Triggering Event"), then the Company shall promptly assign
to, or cause UOLP to assign to, Xxxxxx all rights under the Lease Agreement to
purchase the Facility. On or before March 15, 2002, the parties agree to
execute an assignment to Xxxxxx of the right to purchase the Facility and
place the assignment in escrow with a third party and the assignment shall
automatically be released to Xxxxxx upon the occurrence of the Triggering
Event but shall remain fully exercisable by UOLP or the Company prior to the
occurrence of the Triggering Event.
6. Escrow of Minimum Rent. On or before July 1, 2002, the Company
will enter into an Escrow Agreement (the "Escrow Agreement") with a bank or
other financial institution (the "Escrow Agent") selected by Xxxxxx and the
Company will deposit $180,000 (the "Escrow Deposit") with the Escrow Agent.
The Escrow Agreement will provide, among other things, that (a) the Escrow
Deposit may be used only to pay Minimum Rent (as defined in the Lease
Agreement) under the Lease Agreement as directed in writing by Xxxxxx if (and
only if) UOLP does not timely pay such Minimum Rent and the Company does not
pay or cause to be paid the amount of such Minimum Rent, (b) the Escrow
Deposit shall bear interest and that all such interest shall be payable only
to the Company, and (c) all costs, fees, and expenses of the Escrow Agent and
its counsel (collectively, "Escrow Expenses") relating to the establishment,
maintenance, and monitoring of the Escrow Agent shall be payable by the
Company and not by Xxxxxx and the Company hereby agrees to indemnify and hold
harmless Xxxxxx with respect to any Escrow Expenses. The requirements of this
Section 6 are subject to the Company's lender(s) permitting the Escrow
Agreement and the Escrow Deposit; provided, however, that the Company
Guaranty Reimbursement Agreement-- Page 3
shall use all reasonable best efforts to cause such lender(s) to agree to the
Escrow Agreement and the Escrow Deposit and the terms of this Section 6.
7. Release on Sale. In connection with (a) any sale of all or
substantially all of the assets of the Company, (b) the merger of the Company
with another company whereby the shareholders of the Company do not own at
least 50.1% of the entity surviving the merger, or (c) the sale of Common
Stock and/or preferred stock by the Company to a person or group who,
following such sale, control in excess of 50% of the outstanding votes
entitled to be cast by the shareholders of the Company (the events described
in the foregoing clauses (a), (b), and (c) are collectively referenced to as
the "Material Events"), then, unless Xxxxxx otherwise agrees in writing, the
Company shall use all reasonable best efforts to cause the Guaranty to be
fully released in writing as part of the consummation and closing of any
Material Event.
8. Notices. Any notice or other communication required or permitted
to be given under this Agreement must be in writing and given by (a) deposit
in the United States mail, addressed to the party to be notified, postage
prepaid and registered or certified with return receipt requested, (b)
delivery in person, by courier service, or by overnight delivery service, or
(c) transmission by telecopy. Each notice or communication that is mailed,
delivered, or transmitted in the manner described above shall be deemed
sufficiently given, served, sent, and received, in the case of mailed notices,
on the third business day following the date on which it is mailed and, in the
case of notices delivered by hand, courier service, overnight delivery
service, or telecopy, at such time as it is delivered to the addressee (with
the delivery receipt or the affidavit of the courier service or overnight
delivery service being proof of delivery) or at such time as delivery is
refused by the addressee upon presentation. For purposes of notice, the
addresses of the parties shall be the addresses set forth beside the
signatures of the parties hereto. Any party may change its address for notice
by written notice given to the other parties hereto.
9. Binding Effect. This Agreement shall be binding upon and
enforceable by the parties hereto and their respective executors,
administrators, successors, personal representatives, heirs, and permitted
assigns. Xxxxxx'x rights hereunder are not assignable.
10. Governing Law Venue. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED, CONSTRUED, AND ENFORCED
IN ACCORDANCE WITH TEXAS LAW AND THE INTERNAL LAWS OF THE STATE OF TEXAS
WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. The parties agree
that this Agreement is performable in Dallas County, Texas and that any
litigation directly or indirectly relating to this Agreement must be brought
before and determined by a court of competent jurisdiction within Dallas
County, Texas, and the parties hereby agree to waive any rights to object to,
and hereby agree to submit to, the jurisdiction of such courts.
11. Severability. If any provision of this Agreement is determined to
be illegal, invalid, or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such
Guaranty Reimbursement Agreement-- Page 4
illegal, invalid, or unenforceable provision, there shall be added
automatically as part of this Agreement, a provision as similar in its terms
to such illegal, invalid, or unenforceable provision as may be possible and be
legal, valid, and enforceable.
12. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties relating to the subject matter hereof
and thereof and supersede all prior representations, endorsements, premises,
agreements, memoranda, communications, negotiations, discussions,
understandings, and arrangements, whether oral, written, or inferred, between
the parties relating to the subject matter hereof.
13. Miscellaneous. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The parties intend that
faxed signature pages to this Agreement will be enforceable without
presentation of the manually executed signature pages. This Agreement may not
be modified, amended, altered, or supplemented, in whole or in part, except
upon the execution and delivery of a written instrument executed by the
parties to this Agreement. The headings of this Agreement have been inserted
for convenience of reference only and shall in no way restrict or otherwise
modify any of the terms or provisions hereof or affect in any way the meaning
or interpretation of this Agreement. The waiver of any breach of any term or
condition of this Agreement shall not be deemed to constitute the waiver of
any other breach of the same or any other term or condition. Except to the
extent a third party is expressly given rights herein, any agreement
contained, expressed, or implied in this Agreement shall be only for the
benefit of the parties hereto and their respective executors, administrators,
successors, personal representatives, heirs, and assigns and such agreements
shall not inure to the benefit of the obligees of any indebtedness of any
party hereto, it being the intention of the parties hereto that no person or
entity shall be deemed a third party beneficiary of this Agreement except to
the extent a third party is expressly given rights herein. The use of terms
denoting masculine, feminine, or neuter gender shall include each other
gender. The use of singular or plural references shall include the other where
appropriate.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
ULTRAK, INC.
Address:
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopy No. 000-000-0000 By:_________________________________
Attn: President and General Counsel Its:________________________________
Address:
00000 Xxxxxx Xxxx
Xxxxxx, XX 00000 ________________________________
XXXXXX X. XXXXXX
Guaranty Reimbursement Agreement-- Page 5
