PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Agreement") dated as of November 14, 2001,
is by and between ___________________________________, a ______________ (the
"Pledgor") whose address is _________________________________________________
and XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION, a national banking
association, as agent for itself and Lenders party to the Operative Agreements
(defined below) (in such capacity, the "Secured Party").
R E C I T A L S:
A. ULTRAK OPERATING, L.P., a Texas limited partnership (the "Lessee" or
the "Construction Agent"), ULTRAK, INC., a Delaware corporation (the
"Guarantor"), FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not individually (in its individual capacity, the "Trust Company"),
except as expressly stated herein, but solely as the Owner Trustee under the
Ultrak Trust 1996-1 (the "Owner Trustee," the "Borrower" or the "Lessor"),
Secured Party, XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION, and BANK ONE, NA
("Bank One"), as Lenders (subject to the definition of Lenders in Appendix A to
the Participation Agreement, individually, a "Lender" and collectively, the
"Lenders") are parties to various Operative Agreements providing for a tax
retention operating lease financing for Lessee and Guarantor, each dated as of
March 31, 1997 (as amended, restated or modified from time to time, the
"Operative Agreements"). Capitalized terms used in this Agreement, and not
otherwise defined herein, shall have the same meanings as used in the Operative
Agreements.
B. Pursuant to the Operating Agreements, the Lenders have severally
agreed to make Loans to the Borrower upon the terms and subject to the
conditions set forth therein, to be evidenced by the Notes issued by the
Borrower under the Credit Agreement.
C. Secured Party has conditioned its obligations under the Operating
Agreements upon the execution and delivery of this Agreement by Pledgor.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Security Interest and Pledge
Section 1.1. Security Interest and Pledge. As collateral security for
the prompt payment in full when due of all amounts owing under the Loans
(whether at stated maturity, by acceleration, or otherwise) and all present and
future Obligations of Pledgor under the Operative Agreements, Pledgor hereby
pledges and grants to Secured Party a first priority security interest in the
following property (such property being hereinafter sometimes called the
"Collateral"):
(a) Pledgor's Money Market Account #_________, maintained with
Secured Party, in the amount of $500,000; and
(b) all products, proceeds, revenues, distributions, dividends,
stock dividends, securities, and other property, rights, and interests
that Pledgor receives or is at any time entitled to receive on account
of the same.
ARTICLE II
Representations and Warranties
Pledgor represents and warrants to Secured Party that:
Section 2.1. Title. Pledgor owns, legally and beneficially, the
Collateral free and clear of any Lien, security interest, pledge, claim, or
other encumbrance or any right or option on the part of any third Person to
purchase or otherwise acquire the Collateral or any part thereof, except for the
security interest granted hereunder. Pledgor has the unrestricted right to
pledge the Collateral as contemplated hereby.
Section 2.2. First Priority Perfected Security Interest. This Agreement
creates in favor of Secured Party a first priority perfected security interest
in the Collateral. There are no conditions precedent to the effectiveness of
this Agreement that have not been fully and permanently satisfied.
ARTICLE III
Affirmative and Negative Covenants
Pledgor covenants and agrees with Secured Party that:
Section 3.1. Encumbrances. Pledgor shall not create, permit, or suffer
to exist, and shall defend the Collateral against, any Lien, security interest,
or other encumbrance on the Collateral except the pledge and security interest
of Secured Party hereunder, and shall defend Pledgor's rights in the Collateral
and Secured Party's security interest in the Collateral against the claims of
all Persons.
Section 3.2. Sale of Collateral. Pledgor shall not sell, assign, or
otherwise dispose of the Collateral or any part thereof without the prior
written consent of Secured Party.
Section 3.3. Further Assurances. At any time and from time to time,
upon the request of Secured Party, and at the sole expense of Pledgor, Pledgor
shall promptly execute and deliver all such further instruments and documents
and take such further action as Secured Party may deem necessary or desirable to
preserve and perfect its security interest in the Collateral and carry out the
provisions and purposes of this Agreement, including, without limitation, the
execution and filing of such financing statements as Secured Party may require.
A carbon, photographic, or other reproduction of this Agreement or of any
financing statement covering the
-2-
Collateral or any part thereof shall be sufficient as a financing statement and
may be filed as a financing statement. The Pledgor authorizes the Secured Party
to file one or more financing or continuation statements, and amendments thereto
relating to the Collateral without the signature of Pledgor where permitted by
law.
Section 3.4. Notification. Pledgor shall promptly notify Secured Party
of (i) any Lien, security interest, encumbrance, or claim made or threatened
against the Collateral, or (ii) any condition or change that could have a
Material Adverse Effect on the Collateral
ARTICLE IV
Rights of Secured Party and Pledgor
Section 4.1. Power of Attorney. Pledgor hereby irrevocably constitutes
and appoints Secured Party and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead and in the name of Pledgor or in its
own name, from time to time in Secured Party's discretion, to take any and all
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement and, without
limiting the generality of the foregoing, hereby gives Secured Party the power
and right on behalf of Pledgor and in its own name to do any of the following
(subject to the rights of Pledgor under Section 4.3 hereof), without notice to
or the consent of Pledgor:
(i) to demand, xxx for, collect, or receive in the name of Pledgor
or in its own name, any money or property at any time payable or
receivable on account of or in exchange for any of the Collateral and,
in connection therewith, endorse checks, notes, drafts, acceptances,
money orders, or any other instruments for the payment of money under
the Collateral;
(ii) to pay or discharge taxes, Liens, security interests, or
other encumbrances levied or placed on or threatened against the
Collateral;
(iii) (A) to receive payment of and receipt for any and all
monies, claims, and other amounts due and to become due at any time in
respect of or arising out of any Collateral; and (B) to sell, transfer,
pledge, make any agreement with respect to or otherwise deal with any
of the Collateral as fully and completely as though Secured Party were
the absolute owner thereof for all purposes, and to do, at Secured
Party's option and Pledgor's expense, at any time, or from time to
time, all acts and things which Secured Party deems necessary to
protect, preserve, or realize upon the Collateral and Secured Party's
security interest therein.
This power of attorney is a power coupled with an interest and shall be
irrevocable. Secured Party shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges, and options expressly or
implicitly granted to Secured Party in this Agreement, and shall not be liable
for any failure to do so or any delay in doing so. Secured Party shall not be
liable for any act or omission or for any error of judgment or any mistake of
fact or law in its individual capacity or in its capacity as attorney-in-fact
except acts or omissions
-3-
resulting from its willful misconduct. This power of attorney is conferred on
Secured Party solely to protect, preserve, and realize upon its security
interest in the Collateral.
Section 4.2. Assignment by Secured Party. Secured Party may at any time
and from time to time assign the Obligations and any portion thereof and/or the
Collateral and any portion thereof, and the assignee shall be entitled to all of
the rights and remedies of Secured Party under this Agreement in relation
thereto.
Section 4.3. Remedies Related to the Collateral. Notwithstanding
anything to the contrary in this Agreement, the terms and conditions of that
certain Tenth Amendment to Operative Agreements, executed on or about the date
hereof, by and among Lessee, Guarantor, Pledgor, Secured Party and various
Lenders, controls as it relates to the Collateral, and specifically, the Secured
Party may not liquidate the Collateral and apply the funds received therefrom
toward repayment of the Loans until the earlier of (i) failure to deliver the
Commitment Letter on or before November 30, 2001, or (ii) failure to repay all
accrued and unpaid interest, outstanding principal, expenses and other amounts
owing on the Loans on or before December 17, 2001.
ARTICLE V
Default
Section 5.1. Rights and Remedies. If any Event of Default shall occur,
Secured Party shall have the following rights and remedies:
(i) In addition to all other rights and remedies granted to
Secured Party in this Agreement and in any other instrument or
agreement securing, evidencing, or relating to the Obligations, Secured
Party shall have all of the rights and remedies of a secured party
under the Uniform Commercial Code as adopted by the State of Texas.
Without limiting the generality of the foregoing, Secured Party may (A)
without demand or notice to Pledgor, collect, receive, or take
possession of the Collateral or any part thereof, (B) sell or otherwise
dispose of the Collateral, or any part thereof, in one or more parcels
at public or private sale or sales, at Secured Party's offices or
elsewhere, for cash, on credit, or for future delivery, and/or (C) bid
and become a purchaser at any sale free of any right or equity of
redemption in Pledgor, which right or equity is hereby expressly waived
and released by Pledgor. Pledgor agrees that Secured Party shall not be
obligated to give more than ten (10) days written notice of the time
and place of any public sale or of the time after which any private
sale may take place and that such notice shall constitute reasonable
notice of such matters. Secured Party shall not be obligated to make
any sale of the Collateral regardless of notice of sale having been
given. Secured Party may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to
which it was so adjourned. Pledgor shall be liable for all expenses of
retaking, holding, preparing for sale, or the like, and all attorneys'
fees and other expenses incurred by Secured Party in connection with
the collection of the Obligations and the enforcement of Secured
Party's rights under this Agreement, all of which expenses and
-4-
fees shall constitute additional Obligations secured by this Agreement.
Secured Party may apply the Collateral against the Obligations in such
order and manner as Secured Party may elect in its sole discretion.
Pledgor shall remain liable for any deficiency if the proceeds of any
sale or disposition of the Collateral are insufficient to pay the
Obligations. Pledgor waives all rights of marshalling in respect of the
Collateral..
(ii) Secured Party may cause any or all of the Collateral held by
it to be transferred into the name of Secured Party or the name or
names of Secured Party's nominee or nominees.
(iii) Secured Party may collect or receive all money or property
at any time payable or receivable on account of or in exchange for any
of the Collateral, but shall be under no obligation to do so.
(iv) Secured Party shall have the right, but shall not be
obligated to, exercise or cause to be exercised all voting, consensual,
and other powers of ownership pertaining to the Collateral, and Pledgor
shall deliver to Secured Party.
(v) On any sale of the Collateral, Secured Party is hereby
authorized to comply with any limitation or restriction with which
compliance is necessary, in the view of Secured Party's counsel, in
order to avoid any violation of applicable law or in order to obtain
any required approval of the purchaser or purchasers by any applicable
governmental authority.
ARTICLE VI
Miscellaneous
Section 6.1. Expenses; Indemnification. Pledgor agrees to pay on demand
all costs and expenses incurred by Secured Party in connection with the
preparation, negotiation, and execution of this Agreement and any and all
amendments, modifications, and supplements hereto. Pledgor agrees to pay and to
hold Secured Party harmless from and against all fees and all excise, sales,
stamp, and other taxes payable in connection with this Agreement or the
transactions contemplated hereby. Pledgor hereby indemnifies Secured Party and
each affiliate thereof and their respective officers, directors, employees,
attorneys, and agents from, and holds each of them harmless against, any and all
losses, liabilities, claims, damages, penalties, judgments, costs, and expenses
(including attorneys' fees) to which any of them may become subject which
directly or indirectly arise from or relate to (i) the negotiation, execution,
delivery, performance, administration, or enforcement of this Agreement, (ii)
any of the transactions contemplated by this Agreement, (iii) any breach by
Pledgor of any representation, warranty, covenant, or other agreement contained
in this Agreement, or (iv) any investigation, litigation, or other proceeding,
including, without limitation, any threatened investigation, litigation, or
other proceeding relating to any of the foregoing. Without limiting any
provision of this Agreement or any other instrument, or agreement securing,
evidencing, or relating to the Obligations or any part thereof, it is the
express intention of the parties hereto that each person or entity to be
indemnified under this Section shall be indemnified from and held harmless
against any and all
-5-
losses, liabilities, claims, damages, penalties, judgments, costs, and expenses
(including attorneys' fees) arising out of or resulting from the sole or
contributory negligence of the person or entity to be indemnified.
Section 6.2. No Waiver; Cumulative Remedies. No failure on the part of
Secured Party to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power, or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power, or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege. The
rights and remedies provided for in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
Section 6.3. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of Pledgor and Secured Party and their respective
heirs, successors, and assigns, except that Pledgor may not assign any of its
rights or obligations under this Agreement without the prior written consent of
Secured Party.
Section 6.4. AMENDMENT; ENTIRE AGREEMENT. THIS AGREEMENT EMBODIES THE
FINAL, ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO AND SUPERSEDES ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER
WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS
BETWEEN THE PARTIES HERETO. The provisions of this Agreement may be amended or
waived only by an instrument in writing signed by the parties hereto.
Section 6.5. Notices. All notices and other communications provided for
in this Agreement shall be given or made by telex, telegraph, telecopy, cable,
or in writing and telexed, telecopied, telegraphed, cabled, mailed by certified
mail return receipt requested, or delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof;
or, as to any party at such other address as shall be designated by such party
in a notice to the other party given in accordance with this Section. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telex or telecopy, subject to telephone
confirmation of receipt, or delivered to the telegraph or cable office, subject
to telephone confirmation of receipt, or when personally delivered or, in the
case of a mailed notice, when duly deposited in the mails, in each case given or
addressed as aforesaid.
Section 6.6. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas and the applicable
laws of the United States of America.
Section 6.7. Headings. The headings, captions, and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
-6-
Section 6.8. Survival. All representations and warranties made in this
Agreement shall survive the execution and delivery of this Agreement, and no
investigation by Secured Party shall affect the representations and warranties
of Pledgor herein or the right of Secured Party to rely upon them.
Section 6.9. Counterparts. 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.
Section 6.10. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 6.11. Construction. Pledgor and Secured Party acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed as if jointly drafted by Pledgor and Secured
Party.
Section 6.12. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, PLEDGOR HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON
CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF SECURED PARTY IN THE
NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
-7-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
PLEDGOR:
,
----------------------------------------
By:
--------------------------------------
Name:
Title:
Address for Notices:
-----------------------------------------
-----------------------------------------
Fax No.:
---------------------------------
Telephone No.:
---------------------------
Attention:
-------------------------------
SECURED PARTY:
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as Agent
By:
--------------------------------------
Name:
Title:
Address for Notices:
0000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx
Vice President
-8-
