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EXHIBIT 10.16
NATIONSBANK
NATIONSBANK OF TEXAS, N.A.
THIRD AMENDMENT
TO
FINANCING AND SECURITY AGREEMENT
This agreement ("Third Amendment") is executed and entered
into by and among NATIONSBANK OF TEXAS, N.A. ("Lender"), ULTRAK, INC., a
Colorado corporation, DENTAL VISION DIRECT, INC., a Texas corporation, EXXIS
TECHNOLOGIES, INC., a Texas corporation, JAK PACIFIC VIDEO WARRANTY AND REPAIR
SERVICES, INC., a California corporation, and DIAMOND ELECTRONICS, INC., an
Ohio corporation, as follows:
Definitions
The following definitions shall apply throughout this Third Amendment:
"CCTV/LPEC Merger Date" means December 31, 1993.
"Diamond" means Diamond Electronics, Inc., an Ohio corporation.
"JAK" means JAK Pacific Video Warranty and Repair Services, Inc., a
California corporation.
"Effective Date" means July 18, 1995.
"Exxis" means Exxis Technologies, Inc., a Texas corporation.
"Financing and Security Agreement" means the certain Financing and
Security Agreement dated effective as of September 24, 1993 among
Lender, Ultrak, LPEC, CCTV and DVDI, as may be modified, amended,
renewed, extended or restated from time to time.
"Ultrak Parties" collectively means Ultrak, DVDI, Diamond, JAK and
Exxis.
Except as provided otherwise herein, terms defined in the Financing and
Security Agreement are incorporated herein by reference and shall have the same
meanings wherever used herein as are prescribed by the Financing and Security
Agreement, as amended by this Third Amendment.
Recitals
Lender, Ultrak and DVDI are parties to the Financing and Security
Agreement.
Subsequent to execution of the Financing and Security Agreement, CCTV
and LPEC were merged into Ultrak.
It is proposed that each of Diamond, Exxis and JAK become a party to
the Financing and Security Agreement as a Borrower, with all rights,
benefits and obligations of a Borrower thereunder.
NOW THEREFORE, for valuable consideration, the receipt of which hereby is
acknowledged, and in consideration of the mutual agreements and benefits in the
premises, the undersigned parties each hereby agrees as follows:
ARTICLE 1. SUPPLEMENTAL AGREEMENTS IN RESPECT OF CCTV/LPEC MERGER
1.1. The Ultrak Parties represent and warrant to Lender that on the
CCTV/LPEC Merger Date, CCTV and LPEC each was merged into Ultrak in a merger
transaction in which Ultrak assumed ownership of all properties (including all
Collateral), and all liabilities (including all Obligations) of CCTV and LPEC,
respectively. Lender consents to such merger (such consent to be deemed
effective as of the CCTV/LPEC Merger Date) subject to the terms of this Third
Amendment.
1.2. Contemporaneously upon execution hereof, Ultrak shall deliver
to Lender a copy of the Certificate of Merger, or comparable document,
certified by the Secretary of State of Colorado and confirming the merger
transaction referenced in paragraph 1.1.
1.3. Ultrak acknowledges that it is directly liable for all
Obligations owing by each of CCTV and LPEC, respectively, as of the CCTV/LPEC
Merger Date. Ultrak represents that all Collateral previously owned by CCTV and
LPEC, respectively, prior to the CCTV/LPEC Merger Date is now owned by Ultrak,
subject to Lender's interests under the Financing and Security Agreement. On
and after the CCTV/LPEC Merger Date, any and all Loan Documents which at any
time have been or are executed in the name of CCTV or LPEC, respectively, shall
be deemed to be the act of Ultrak.
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1.4. Ultrak agrees to execute such additional documentation in
connection with the foregoing as Lender may reasonably request in order to
protect and continue Lender's rights under the Loan Documents.
ARTICLE II. SUPPLEMENTAL AGREEMENTS IN RESPECT OF DIAMOND, EXXIS AND JAK
2.1. The Financing and Security Agreement hereby is amended, as of
the Effective Date, to add a new paragraph 1.21a immediately following
paragraph 1.21, a new paragraph 1.27a immediately following paragraph 1.27, and
a new paragraph 1.37a immediately following paragraph 1.37, respectively, each
of which shall read in its entirety as follows:
"1.21a "Diamond" means Diamond Electronics, Inc., an Ohio
corporation, whose chief executive office is located at 0000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000."
"1.27a "Exxis" means Exxis Technologies, Inc., a Texas
corporation, whose chief executive office is located at 0000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000."
"1.37a "JAK" means JAK Pacific Video Warranty and Repair
Services, Inc., a California corporation, whose chief
executive office is located at 0000 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxx 00000."
2.2. Paragraph 1.7 (definition of "Borrower") hereby is amended to
read in its entirety as follows:
"1.7 "Borrower"separately and severally means each of
Ultrak, DVDI, JAK, Diamond and Exxis, respectively."
2.3. Paragraph 1.9 (definition of "Borrowers") hereby is amended to
read in its entirety as follows:
"1.9 "Borrowers"collectively means all of Ultrak, DVDI,
JAK, Diamond and Exxis, collectively together. "
2.4. Contemporaneously upon execution hereof, Diamond, Exxis and
JAK each shall deliver to Lender each of the items (pertaining to themselves,
respectively) as are itemized by subparagraphs (a) through (n) of paragraph 4.1
of the Financing and Security Agreement.
2.5. Exhibit 3.4 ("Location of Collateral") to the Financing and
Security Agreement hereby is amended and restated, as of the Effective Date, to
read in its entirety as shown in Exhibit "A" attached hereto which is
incorporated herein by reference. The second sentence of Paragraph 3.4
("Location of Collateral") of the Financing and Security Agreement hereby is
amended and restated as follows:
"Exhibit 3.4 attached hereto correctly identifies the locations where
all Inventory and Equipment will be maintained, and if any such
location is a leased location, the name and address of the owner
thereof."
2.6. Pursuant to paragraph 3.17 of the Financing and Security
Agreement: Each Borrower other than Diamond, Exxis and JAK (i) hereby agrees
that the continuing security interest and lien previously granted to Lender by
such Borrower under such paragraph 3.17 shall secure all Obligations from time
to time owing by each of the other Borrowers, respectively (including without
limitation Diamond, Exxis and JAK), and as additional security, hereby grants
to Lender a continuing security interest and lien in and to all of its right,
title and interest in the Collateral to secure all Obligations from time to
time owing by each of the other Borrowers, respectively (including without
limitation Diamond, Exxis and JAK) (such grant to be governed by, and entitled
to all of the benefits of, the Financing and Security Agreement as provided in
such paragraph 3.17), (ii) each Borrower other than Diamond, Exxis and JAK
shall execute and deliver for the benefit of Lender guaranty agreements
pursuant to which such party shall guarantee to Lender the prompt payment and
performance of all Obligations from time to time owing by Diamond, Exxis and
JAK, respectively (such guaranty agreements to be in form and substance
satisfactory to Lender and delivered to Lender contemporaneously upon execution
of this Third Amendment) and (iii) each of Diamond, Exxis and JAK,
respectively, hereby grants to Lender a continuing security interest and lien
in and to all of its right, title and interest in the Collateral to secure all
Obligations of each other Borrower from time to time arising on or after the
Effective Date, respectively (such grants to be governed by, and entitled to
all of the benefits of the Financing and Security Agreement), and each of
Diamond, Exxis and JAK, respectively, shall execute and deliver for the benefit
of Lender a guaranty agreement pursuant to which such party shall guarantee to
Lender the prompt payment and performance of all Obligations of each other
Borrower from time to time arising on or after the Effective Date (such
guaranty agreements to be in form and substance satisfactory to Lender),
provided that it is agreed that (i) such security interest and guaranty
agreements shall not secure any Obligations existing and owing as of the close
of Lender's business on the Business Day preceding the Effective Date (for this
purpose it is agreed that payments applied on or after the Effective Date to
Obligations of any Borrower shall be deemed applied first in reduction of
Obligations of
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such Borrower existing as of the close of Lender's business on the Business Day
preceding the Effective Date). Each Borrower hereby acknowledges that its
agreement to the provisions of this paragraph is in consideration of the
availability of loans to each of the other Borrowers under the Financing and
Security Agreement and is not required by Lender as a condition to the
availability of loans or extensions of credit to such Borrower.
2.7. As of the Effective Date, Exhibit 5.6 ("Share Ownership") of
the Financing and Security Agreement hereby is deemed to be amended to read in
its entirety as provided in Exhibit "B" attached hereto.
2.8. Each of Diamond, Exxis and JAK has delivered to Lender its
balance sheet, income statement and statement of cash flow as of its fiscal
year ending December 31, 1994, and its balance sheet and income statement as of
the monthly period ending May 31, 1995. Such financial statements were prepared
in accordance with GAAP, and are correct and complete, and fairly present the
financial condition of such Borrowers as of such dates and the results of their
respective operations for the periods covered thereby. There has been no
material adverse change in the business, properties or financial condition of
Diamond or Exxis since the dates of the foregoing financial statements,
respectively.
2.9. Diamond, Exxis and JAK each hereby represents and warrants to
Lender each of the representations and warranties provided by the following
paragraphs of the Financing and Security Agreement, as though separately set
forth herein: Paragraphs 3.3, 3.4 (as amended by paragraph 2.5 of this Third
Amendment), 3.6 and 3.9, and each of paragraphs 5.1 through 5.5, paragraph 5.6
(as amended by paragraph 2.7 of this Third Amendment), paragraph 5.7 and each
of paragraphs 5.9 through 5.20.
2.10. On and after the Effective Date, each of Diamond, Exxis and
JAK shall be deemed to be a party to the Financing and Security Agreement (as
supplemented by this Third Amendment) as a Borrower for all purposes, and
Diamond, Exxis and JAK each hereby covenants and agrees to perform all
obligations of a Borrower thereunder, subject to the terms of this Third
Amendment.
ARTICLE III. ADDITIONAL AMENDMENTS
3.1 The Financing and Security Agreement hereby is amended to
restate or add, as the case may be, the following definitions in Article 1, as
follows:
"1.00 "ADJUSTED LIBOR RATE" means an interest rate per annum equal
to the quotient of (i) the London Interbank Offered Rate, divided by
(ii) a percentage equal to 100.0% less the Eurodollar Reserve
Percentage.
"1.14 "COLLATERAL" means collectively all of the foregoing, now
owned and hereafter acquired: Receivables, Inventory, Equipment, and
all computer programs, applications, discs, software, files and other
records pertaining to any Collatera1. Collateral also includes all
proceeds of any of the foregoing at any time arising, including
insurance proceeds."
"1.18 "CONTRACT TERM" means the period specified in the preamble of
this Agreement and continuing through July 31, 1997
"1.19 "CREDIT LIMIT" means the amount of Seventeen Million Five
Hundred Thousand and no/100 Dollars ($17,500,000.00)."
"1.24a "EQUIPMENT" means all equipment now owned and hereafter
acquired, including without limitation all machinery, furniture and
other goods used or bought for use in business and all other property
which is properly classified as equipment pursuant to the Code, both
now owned and hereafter acquired.
"1.26a "EURODOLLAR BUSINESS DAY" means any Business Day on which
transactions in United States Dollars are conducted in the London
interbank market.
"1.26b "EURODOLLAR RESERVE PERCENTAGE" shall mean the maximum reserve
requirement (including without limitation, any basic, supplemental,
marginal and emergency reserves) (expressed as a percentage)
applicable to member banks of the Federal Reserve System in respect of
"Eurocurrency Liabilities" under Regulation D of the Board of
Governors of the Federal Reserve System, or such additional,
substituted or amended reserve requirement as may be hereafter
applicable to member banks of the Federal Reserve System."
"1.35a "INTEREST PERIOD" means the period commencing on the first
effective Eurodollar Business Day of a LIBOR Contract Rate election
under paragraph 2.2a and ending one, two, three or six months
thereafter, as designated by a Borrower at the time of such election,
provided that (i) if any Interest Period would otherwise end on a day
which is not a Eurodollar Business Day, then such Interest Period
shall be extended to the next succeeding Eurodollar Business Day
unless to do so would extend such Interest Period into a subsequent
calendar month, in which event such Interest Period shall end on the
next
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preceding Eurodollar Business Day, and (ii) any Interest Period that
begins on the last day of a calendar month, or on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period, shall end on the last Eurodollar Business
Day of the last calendar month of such Interest Period, and provided
further, that no Interest Period may end on a day which is after the
last day of the Contract Term."
"1.40a "LIBOR CONTRACT RATE" means the Adjusted LIBOR Rate plus two
and one-half percent (2.50%) per annum."
"1.40b "LIBOR RATE OPTION" means any election by a Borrower, in
accordance with paragraph 2.2a to have any Tranche bear interest
according to the LIBOR Contract Rate."
"1.40c "LONDON INTERBANK OFFERED RATE" means, with respect to any
LIBOR Rate Option for the applicable Interest Period, the rate of
interest per annum (rounded upward, if necessary, to the next higher
1/1 6th of one percent) determined by Lender, in accordance with its
customary general practice from time to time, to be the rate at which
deposits in immediately available funds in Dollars are or would be
offered or quoted by Lender to major banks in the London interbank
market, as of approximately 11:00 a.m. London time, or as soon
thereafter as practicable, on the second Business Day immediately
preceding the first day of such Interest Period, for a term comparable
to such Interest Period and in an amount equal to the amount of the
Tranche to be the subject of such LIBOR Rate Option. If no such offers
or quotes are generally available for such amount, then Lender shall
be entitled to determine the London Interbank Offered Rate for any
such LIBOR Rate Option by estimating in its reasonable judgment the
per annum rate (described above) that would be applicable if such
quotes or offers were generally available."
"1.41 "LOAN DOCUMENTS" means this Agreement, each Revolving Note,
each Term Note, each Guaranty, the Real Property Collateral Documents
and any other documents or agreements executed in connection
therewith, and also includes any and all renewals, extensions,
modifications or amendments of any of the foregoing."
"1.49a "PRETAX NOT INCOME" for any period means net income for such
period prior to accruing for appropriate taxes but otherwise
determined as provided by the definition of "Net Income" in paragraph
6.22(b)."
"1.51a "REAL PROPERTY COLLATERAL" means the certain real property
described within Exhibit 1.51 a."
"1.51b "REAL PROPERTY COLLATERAL DOCUMENTS" means the certain
[DESCRIBE DEED OF TRUST OR MORTGAGE] Deed of Trust of even date
herewith executed by Borrower creating a deed of trust lien in the
Real Property Collateral for the benefit of Lender, together with all
affidavits, certificates and other documents executed by Borrower in
connection therewith.
"1.59a "TERM FACILITY" means the loan facility established by this
Agreement pursuant to Article IIA."
"1.59b "TERM FACILITY CREDIT LIMIT" means the maximum amount in
respect of the Term Facility applicable to each respective Borrower,
as follows: (i) $500,000.00 for Ultrak, (ii) $100,000.00 for DVDI,
(iii) $100,000.00 for Exxis, (iv) $1,800,000.00 for Diamond and (v)
$0.00 (zero dollars) for JAK.
"1.59c "TERM FACILITY BORROWING BASE" means (i) with respect to any
Borrower other than Diamond, an amount equal to seventy five percent
(75.0%) of the forced sale liquidation value of Equipment owned by
such Borrower and (ii) with respect to Diamond, an amount equal to the
sum of seventy five percent (75.0%) of the forced sale liquidation
value of Equipment owned by Diamond plus seventy five percent of the
fair market value of the Real Property Collatera1. The forced sale
liquidation value of Equipment and the fair market value of the Real
Property Collateral, for purposes of determining the Term Facility
Borrowing Base, shall be as determined by Lender from time to time in
its discretion.
"1.59d "TERM NOTE" shall mean a promissory note executed by a
Borrower payable to the order of Lender evidencing loans to such
Borrower under the Term Facility, as provided in paragraph 2A.1 and in
form satisfactory to Lender, and includes any and all renewals,
extensions, amendments or modifications thereof."
"1.59e "TRANCHE" means any portion of the Revolving Facility the
principal amount of which is subject to election of the LIBOR Contract
Rate in accordance with paragraph 2.2a."
3.2 The first sentence of paragraph 1.17 (definition of
"Contract Rate") of the Financing and Security Agreement hereby is amended to
read as follows:
"CONTRACT RATE" means, on any day, a floating annual rate of interest
calculated on the basis of actual days elapsed but computed as if each
year consists of 360 days, equal to
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the sum of the Prime Rate effective as of the first day of the
calendar month in which such day falls plus (i) in the case of the
Revolving Facility, one-quarter of one percent (0.25%) and (ii) in the
case of the Term Facility, one-quarter of one percent (0.25%)."
3.3 Paragraph 1.21 (definition of "Eligible Accounts") of the
Financing and Security Agreement hereby is amended to add the following,
immediately after the existing last sentence thereof:
"At Lender's discretion, Lender may consider for eligibility accounts
owing by account debtors located outside the United States, provided,
that the aggregate unpaid amount (in United States dollars) (i) of all
such accounts at no time exceeds $200,000.00 and (ii) for all such
accounts owing by any single account debtor at no time exceeds
$100,000.00, and provided further, that the determination of whether
to include any such accounts as Eligible Accounts shall at all times
be and remain in Lender's sole discretion."
3.4 The Financing and Security Agreement hereby is amended to add
Exhibit 1.52a entitled "Real Property Collateral" in the form attached as
Exhibit "C" attached hereto.
3.5 In paragraph 1.4 (definition of "Aggregate Borrowing Base")
and paragraph 1.16 (definition of "Company Borrowing Base"), the dollar amount
"$5,000,000.00" hereby is amended, in each case, to read "$8,750,000.00".
3.6 The Financing and Security Agreement is amended to add a new
paragraph 2.2a (entitled "LIBOR Option") and a new paragraph 2.2b (entitled
"Interest Rate Reduction"), respectively, immediately following paragraph 2.1,
each of which shall read in its entirety as follows:
"2.2a LIBOR OPTION. Subject to the terms and provisions of
this Agreement, and in lieu of the interest rate otherwise applicable
under paragraph 2.1, each Borrower shall have the option to elect a
rate per annum equal to the lesser of (i) the LIBOR Contract Rate or
(ii) the Maximum Rate as being applicable to any Tranche during any
Interest Period, provided, that any such Tranche shall be in the
minimum amount of $1,750,000.00, and no more than four (4) separate
Tranches may exist in the aggregate at any one time. Any Borrower may
make such election at any time by written notice, in form satisfactory
to Lender, delivered to Lender no later than two (2) Eurodollar
Business Days prior to the beginning of the Interest Period to which
such election shall be applicable, therein stating (i) the Interest
Period selected, and the date such Interest Period is to begin, and
(ii) the principal amount of the Tranche to be subject to such
election. Any such written notice of election shall be irrevocable.
Accrued interest on the principal amount of each Tranche shall be
payable monthly in arrears on the last day of each calendar month and
on the last day of the Interest Period applicable to such Tranche. If,
with respect to any election under this paragraph, Lender determines
that deposits in United States Dollars, in applicable amounts, are not
being offered to Lender, or other major United States banks of
comparable size to Lender, in the London interbank Eurodollar market
for the applicable Interest Period, or Lender determines that the
LIBOR Contract Rate will not adequately and fairly reflect the cost to
Lender of maintaining or funding the applicable portion of the Loans
relative to such election for such Interest Period, then at Lender's
option, Lender may give notice to Borrowers and thereby suspend the
option to elect the LIBOR Contract Rate, pending any subsequent
reinstatement in Lender's discretion, and with respect to any such
election then applicable to any portion of the Loans, require that
such portion either be repaid in full (in which event any amounts
otherwise payable in the event of prepayment of a Tranche as provided
below shall not be applicable) or converted to bear interest according
to the interest rate provided in paragraph 2.1. All unpaid principal,
if any, of loans with respect to which no such election is made, as
provided herein, shall automatically be deemed to be subject to, and
shall accrue interest at, the interest rate as provided by paragraph
2.1. Except as results from application of proceeds of Receivables as
provided by paragraph 3.8, prepayment of a Tranche shall not be
permitted without the prior written consent of Lender. Should any
prepayment of a Tranche, or any portion thereof, occur (whether as a
result of such applications or by consent of Lender, or otherwise),
then within fifteen (15) days of Lender's request therefor, Borrowers
shall pay to Lender any loss or expense which Lender may incur or
sustain as a result of any such prepayment. Lender's statement of the
amount of such loss or expense, prepared in reasonable detail by
Lender, shall be conclusive and binding for all purposes, absent
manifest error or gross negligence. Calculation of such amounts shall
be made as though Lender shall have actually funded or committed to
fund the relevant Tranche through the purchase of an underlying
deposit in an amount equal to the amount of such Tranche and having a
maturity comparable to the related Interest Period (provided, however,
that it is understood that Lender may fund, or make provision for
funding, any Tranche in any manner as Lender may determine in its
discretion)."
"2.2b INTEREST RATE REDUCTION. The interest rate(s)
otherwise applicable to the Revolving Facility under paragraph 2.2a or
paragraph 2.2b, as the case may be, shall be subject to reduction on
the conditions, and in specified amounts, as follows:
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==================================================================================
CONDITIONS AMOUNT OF RATE
REDUCTION
No Event of Default exists, and: =================================
Contract Rate LIBOR
Contract Rate
==================================================================================
Tangible Net Worth at December 31, 1995
equals or exceeds $16,000,000.00 and
---------------------------------------------- One-quarter One-half
Pretax Net Income at for fiscal year ending of of
December 31, 1995 equals or exceeds one percent one percent
$6,000,000.00 and (0.25%) (0.5%)
----------------------------------------------
Leverage Ratio at December 31, 1995 does
not exceed 2.50 to 1.00.
==================================================================================
Once achieved, any such reduction shall be permanent, subject to the
other terms and conditions of this Agreement. Compliance with the
above conditions shall be measured and determined according to the
annual audited financial statements delivered to Lender under
paragraph 6.5. Any such reduction shall be deemed effective as of the
first day of the calendar month next following the calendar month in
which such financial statements are delivered to Lender."
3.7 Paragraph 2.5 ("Early Termination of Revolving Facility by
Borrower") hereby is amended and restated to read in its entirety as follows:
"EARLY TERMINATION OF REVOLVING FACILITY. Borrowers
acknowledge that termination of the Revolving Facility at any time
prior to expiration of the Contract Term would result in the loss by
Lender of benefits under this Agreement, and that the damages incurred
by Lender as a result of such termination would be difficult and
impractical to ascertain. Therefore, in the event of termination of
the Revolving Facility at any effective time prior to expiration of
the Contract Term, then, for the privilege of any such termination and
as a condition to the effectiveness thereof, Borrowers jointly and
severally agree to pay to Lender a sum certain, as liquidated damages,
equal to the following Applicable Percentage (herein defined) of the
Revolving Credit Limit, which amount Borrowers and Lender acknowledge
to be the best estimate of the amount necessary to fairly and
reasonably compensate Lender for its damages resulting from such
termination. As used herein, "Applicable Percentage" means one percent
(1.0%), provided, that the Applicable Percentage shall automatically
reduce by fifty-five one-thousandths percent (0.055%) beginning on
January 18, 1996 and by like amounts on the numerically corresponding
day of each subsequent calendar month thereafter. No such payment will
be applicable with respect to (i) any reduction under the Revolving
Facility which is a result of proceeds received by a Borrower through
capital contributions or which does not result in early termination
and total repayment of the Revolving Facility, (ii) renewal or
refinancing of the Obligations by Lender, (iii) early termination of
the Revolving Facility and total payment of the Obligations following
any reduction in the advance rate generally applicable for determining
the Company Borrowing Base or the Aggregate Borrowing Base (a) in
respect of Eligible Accounts to an amount less than eighty percent
(80%) or (b) in respect of Eligible Inventory to an amount less than
forty-five percent (45%), provided that Borrowers notify Lender in
writing of such intended termination within thirty (30) days following
the effective date of any such reduction, and such termination and
total payment are consummated within ninety (90) days after such
effective date of reduction or (iv) early termination of the Revolving
Facility and total payment of the Obligations following any
notification by Lender of suspension of the LIBOR Option as provided
by paragraph 2.2a, provided, that Borrowers notify Lender in writing
of such intended termination within thirty (30) days following the
effective date of any such suspension, and such termination and total
payment are consummated within ninety (90) days after such effective
date of suspension."
3.8 A new Article IIA (entitled "Term Loan Facility") hereby is
added to the Financing and Security Agreement, immediately following the
conclusion of Article II ("Revolving Credit Facility"), which shall read in its
entirety as follows:
"ARTICLE IIA. TERM FACILITY
2A.1 LOANS. Subject to and on the terms and conditions
provided in this Agreement, Lender hereby approves a loan in favor of
each Borrower, secured by the Collateral, in an aggregate amount up to
the lesser of (i) the Term Facility Borrowing Base applicable to each
such Borrower or (ii) the Term Facility Credit Limit applicable to
each such Borrower, respectively, provided, that the aggregate
principal amount loaned to all Borrowers under the Term Facility shall
not at any time exceed Two Million Five Hundred Thousand and no/l00
dollars ($2,500,000.00). Each loan to a Borrower under the Term
Facility, and all accrued interest thereon, shall be payable as
provided in this Agreement
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and additionally evidenced by a Term Note executed by such Borrower.
Each loan to a Borrower under the Term Facility shall be funded upon
request of such Borrower and upon satisfaction of all requirements
prescribed by paragraph 4.3 or at such other time as may be determined
by mutual agreement.
2A.2 INTEREST. The unpaid principal from day to day
outstanding under the Term Facility shall bear interest at the lesser
of (i) the Contract Rate or (ii) the Maximum Rate, provided, however
that, subject to the provisions of paragraph 9.10, in the event that
the Contract Rate shall exceed the Maximum Rate at any time and
thereafter the Contract Rate shall be less than the Maximum Rate, the
rate of interest applicable hereunder shall remain at the Maximum Rate
until the aggregate accrued interest to date under the Term Facility
equals the amount that would have accrued had the Contract Rate at all
times remained in effect. Interest shall be calculated on a 360
day/year basis, subject to the Maximum Rate. All past due principal
and all past due accrued interest under the Term Facility shall accrue
interest at the Maximum Rate.
2A.3 REPAYMENT TERMS AND MATURITY. Accrued interest under the
Term Facility shall be paid monthly on the last day of each calendar
month during the time any loan thereunder is outstanding. Principal of
each loan under the Term Facility shall be payable as follows: (i)
equal monthly installments in an amount equal to the amount required
to fully amortize the face principal amount of the Term Note
evidencing same over the remaining term of a hypothetical amortization
period of 120 months commencing on September 1, 1995, such monthly
payments to begin on the later of September 1, 1995 or the first day
of the calendar month next following the calendar month in which such
Term Note is made effective, and continuing on the first day of each
calendar month thereafter through and including July 1, 1997, (ii)
followed by a final installment of all remaining unpaid principal on
the last day of the Contract Term. Subject to Lender's rights under
Article VIII, the Term Facility shall terminate and all outstanding
principal, unpaid accrued interest and other obligations thereunder
shall be due and payable in full on July 31, 1997. To the extent that
any accrued interest or principal payment owing by any Borrower under
the Term Facility is not paid on its due date as specified above,
Lender may at its option (but with no obligation to do so), add the
amount thereof to the unpaid principal due by such Borrower under the
Revolving Facility, in which event such amount due under the Term
Facility will be deemed paid and the aggregate amount thereof shall be
treated as a loan to such Borrower under the Revolving Facility.
2A.4 MANDATORY INTERIM PRINCIPAL PAYMENTS. If at any time,
from time to time, the unpaid principal amount outstanding and owing
by a Borrower under the Term Facility exceeds the Term Facility
Borrowing Base applicable to such Borrower then, within thirty (30)
days following written request or demand by Lender, such Borrower
shall make an immediate payment of principal in reduction of its loan
under the Term Facility in an amount not less than the amount
necessary to eliminate such excess as of the time of such payment. All
such amounts, if any, payable by such Borrower shall be deemed to be
payable on demand (subject to such thirty (30) day period), and Lender
shall have the right at any time (after the expiration of such thirty
(30) day period) (but no obligation) to charge such amount as a loan
to such Borrower under the Revolving Facility, or offset same against
any amount owing by Lender to such Borrower, without prior notice. If
at any time, from time to time, the aggregate unpaid principal amount
outstanding and owing by all Borrowers under the Term Facility exceeds
the aggregate amount of $2,500,000.00, Borrowers jointly and severally
agree to make an immediate payment of principal under the Term
Facility in an amount not less than the amount of such excess, which
may be applied by Lender in reduction of the Term Facility in Lender's
discretion. All such amounts, if any, shall be deemed to be payable on
demand, and Lender shall have the right (but no obligation) to charge
such amount as a loan to any Borrower under the Revolving Facility, or
offset same against any amount owing by Lender to any Borrower,
without prior notice.
2A.5 AUTOMATIC MATURITY AND REQUIRED PAYMENT. Notwithstanding
the foregoing, each loan under the Term Facility shall automatically
mature and be due and payable in full, without notice, upon the
earlier of (i) expiration of the Contract Term or (ii) any earlier
termination of the Revolving Facility, in which event each Borrower
agrees to pay all of its Obligations under Term Facility in ful1.
2A.6 PREPAYMENT. Any Borrower shall have the right at any time
and from time to time to make prepayments on the principal amount
borrowed under the Term Facility, in whole or in part, provided, that
(i) all partial prepayments shall be applied in such manner as Lender
may determine.
2A.7 PURPOSE AND USE OF FUNDS. The Term Facility shall be used
for the following purpose: Refinancing of existing indebtedness.
3.9 The first sentence of paragraph 3.6 ("Collateral Reports") is
amended to read as follows:
"At such times and according to such frequency as may be determined by
mutual agreement, and at such other times as Lender may request, each
Borrower shall execute
7
8
and deliver to Lender, in form satisfactory to Lender, a collateral
report setting forth a certification of Eligible Accounts and Eligible
Inventory, and calculation of its Company Borrowing Base, in form
prescribed by Lender."
3.10 The Financing and Security Agreement hereby is amended to add
a new paragraph 3.9a (entitled "Real Property Collateral"), immediately
following paragraph 3.9, which shall read in its entirety as follows:
"3.9a REAL PROPERTY COLLATERAL. Diamond shall grant a deed of
trust lien or mortgage for the benefit of Lender covering the
Real Property Collateral, which at all times shall be
maintained as a first priority deed of trust lien or mortgage
in favor of Lender, securing all of the Obligations, as
provided in the Real Property Collateral Documents. Prior to
funding under the Term Facility with respect to any Real
Property Collateral, Diamond shall provide Lender, at
Borrower's expense, with (i) an environmental site assessment,
prepared by a credentialed environmental site consultant
acceptable to Lender and in form satisfactory to Lender,
confirming to Lender the status of compliance with
Environmental Requirements with respect to such Real Property
Collateral, (ii) a mortgagee's policy of title insurance
written by a title insurance company acceptable to Lender and
in form satisfactory to Lender, containing no exceptions other
than as are acceptable to Lender and (iii) a boundary survey,
performed and certified to Lender by a credentialed registered
surveyor acceptable to Lender, and in form satisfactory to
Lender. As promptly as possible, Lender shall obtain an
updated appraisal of the Real Property Collateral, on a
valuation basis acceptable to Lender, prepared by a
credentialed appraiser acceptable to Lender, and complying
with applicable law and in form satisfactory to Lender.
Lender may obtain an updated appraisal with respect to the
Real Property Collateral at such times as Lender may request
in order to comply with applicable law or internal policy
requirements. Diamond shall pay all reasonable costs and
expenses incurred by Lender in obtaining any and all such
updated appraisals."
3.11 Paragraph 3.10 ("Guaranty") hereby is amended and restated to
read in its entirety as follows:
"3.10 GUARANTY. Guarantor shall execute and deliver to Lender
a guaranty agreement, in form and substance satisfactory to Lender,
pursuant to which Guarantor shall guarantee prompt payment and
performance when due of all Obligations; provided, that in the event
Borrowers meet the conditions for interest rate reduction prescribed
by paragraph 2.2b, such guaranty shall be deemed released and
discharged, in which event, upon Guarantor's written request and
certification to Lender that Borrowers have met such conditions,
Lender will execute and deliver to Guarantor a written release of such
guaranty."
3.12 The Financing and Security Agreement hereby is amended to add
a new paragraph 4.3 (entitled "Loans Under Term Facility"), immediately
following paragraph 4.1, which shall read in its entirety as follows:
"4.3 LOANS UNDER TERM FACILITY. As a condition to each loan to
a Borrower under the Term Facility, each of the following requirements
must be satisfied in Lender's discretion: (a) such Borrower shall be
current with respect to the delivery of all items as required under
paragraph 4.1, (b) the amount outstanding to such Borrower under the
Term Facility, immediately following funding of the amount of loan
requested, will not exceed the Term Facility Credit Limit or the Term
Facility Borrowing Base applicable to such Borrower, and the aggregate
amount outstanding to all Borrowers under the Term Facility shall not
exceed $2,500,000.00, (c) Lender shall have received the Real Property
Collateral Documents, and the items with respect thereto required by
paragraph 3.9a, in form satisfactory to Lender, (d) all
representations and warranties contained in Article III and Article V
hereof shall be true, correct and complete in all material respects
(as determined by Lender in its sole discretion), and (a) no Event of
Default shall have occurred and be continuing, or shall result from
such loan and no other event or condition which would be the subject
of a required notice under paragraph 6.13 shall be in existence. Any
request for funding under the Term Facility at a time when any of the
foregoing requirements is not satisfied may be declined by Lender
without prior notice."
3.13 Subparagraph (a) of paragraph 6.22 ("Financial Covenants")
hereby is amended to add, or modify, the following, as noted:
(a) Subparagraph (all ("Tangible Net Worth") is amended
to add the following, immediately after the last line
thereof:
"December 31, 1995 $12,000,000.00
December 31, 1996 $16,000,000.00"
(b) Subparagraph (a)2 ("Leverage Ratio") is amended to
add the following, immediately after the last line
thereof:
8
9
"December 31, 1995 2.75 to 1.0
December 31, 1996 2.50 to 1.0
All subsequent periods 2.25 to 1.0"
(c) Subparagraph (a)3 ("Capital Expenditures") is amended
to add the following, immediately after the last line
thereof:
"Fiscal year ending December 31, 1995 $1,500,000.00
Fiscal year ending December 31, 1996 $2,000,000.00
Fiscal quarter ending July 31, 1997 $2,000,000.00"
(d) Subparagraph (a)4 ("Interest Coverage Ratio") is
amended to add the following, immediately after the
last line thereof:
"December 31, 1995 4.25 to 1.0
December 31, 1996 4.50 to 1.0"
(e) Subparagraph (a)5 ("Net Income") is amended to add
the following, immediately after the last line
thereof:
"Fiscal year ending December 31, 1995 $3,000,000.00
Fiscal year ending December 31, 1996 $4,000,000.00"
3.14 Subparagraph (h) and subparagraph (i) of paragraph 7.1 ("Event
of Default") of the Financing and Security Agreement hereby are amended and
restated to read in their entirety, respectively, as follows:
"(h) The filing or commencement of any attachment,
sequestration, garnishment, execution or other action against
or with respect to any of the Collateral or the Real Property
Collateral involving an amount in controversy in excess of
$50,000.00;"
"(i) The filing or commencement of any attachment,
sequestration, garnishment, execution or other action against
or with respect to any Borrower's property not included within
the Collateral or the Real Property Collateral if the amount in
controversy is excess of $100,000.00 or if the outcome,
pendency or effect thereof is reasonably expected to
result in or cause a Material Adverse Effect;"
3.15 Paragraph 9.1 ("Effective Date; Termination") of the Financing
and Security Agreement hereby is amended and restated to read in its entirety as
follows:
"9.1 EFFECTIVE DATE; TERMINATION. This Agreement shall
become effective upon acceptance by Lender, as of the effective date
specified in the preamble of this Agreement and, subject to all other
provisions of the Loan Documents, shall continue in full force and
effect through expiration of the Contract Term at which time the
Revolving Facility and the Term Facility each shall terminate without
further notice. Notwithstanding any termination or notice of
termination, the Obligations and all rights and remedies of Lender
hereunder with respect thereto, including without limitation all
rights and remedies with respect to the Collateral shall remain in
full force and effect until the Obligations have been paid in ful1."
3.16 The amendments specified in this Article III are in addition
to, and shall be deemed to become effective simultaneously with, those
specified in Article II.
ARTICLE IV. GENERAL
4.1 In consideration of this Third Amendment and increase of the
Credit Limit as provided herein, Borrowers jointly and severally agree to pay
to Lender a Credit Limit increase fee in the amount of $12,500.00 [which is
calculated by multiplying the sum of (i) the aggregate amount of increase of
the Credit Limit hereunder by one-half of one percent (.005%)], which shall be
payable upon execution hereof.
4.2. Contemporaneously upon execution of this Third Amendment, each
of the Ultrak Parties shall deliver to Lender: (i) a copy of corporate
resolutions (in form satisfactory to Lender) approving this Third Amendment,
authorizing the transactions contemplated hereby, and authorizing and directing
a named officer or officers to execute and deliver this Third Amendment and any
related documents contemplated hereby to be executed by such party, duly
adopted by the board of directors, accompanied by the certificate of the
corporate secretary, dated as of the Effective Date, that such copy is a true
and complete copy of resolutions duly adopted by the board of directors, and
that such resolutions have not been amended, modified, or revoked in any
respect and are in full force and effect as of the date hereof, (ii) an opinion
of counsel in form satisfactory to Lender and (iii) such related documents as
Lender may reasonably request in connection with this Third Amendment.
9
10
4.3 Each of the Ultrak Parties represents that, as of the
Effective Date, ownership of the Ultrak Parties is as reflected in Exhibit "B"
attached hereto, each of the Ultrak Parties is in compliance with all
requirements under the Financing and Security Agreement and that no Event of
Default exists thereunder.
4.4 The Ultrak Parties and Lender each represents to the other
that all necessary corporate action has been taken to authorize its execution
and performance of this Third Amendment.
4.5 The Loan Documents, supplemented as provided herein, hereby
are ratified and confirmed as being and remaining valid and in full force and
effect in accordance with their respective terms, as so supplemented. As of the
Effective Date, all references in the Loan Documents to the Financing and
Security shall mean the Financing and Security Agreement as amended by this
Third Amendment.
4.6 This Third Amendment (i) shall be deemed effective
prospectively as of the Effective Date, (ii) contains the entire agreement
among the parties and may not be amended or modified except in writing signed
by all parties, (iii) shall be governed and construed according to the laws of
the State of Texas and (iv) may be executed in any number of counterparts, each
of which shall be valid as an original and all of which shall be one and the
same agreement. A telecopy of any executed counterpart shall be deemed valid as
an original.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED and made effective as of the Effective Date.
ULTRAK, INC.
By: /s/ XXX X. XXXXX
------------------------------------
Xxx X. Xxxxx
Vice President
DENTAL VISION DIRECT, INC.
By: /s/ XXX X. XXXXX
------------------------------------
Xxx X. Xxxxx
Vice President
JAK PACIFIC VIDEO WARRANTY AND REPAIR
SERVICES, INC.
By: /s/ XXX X. XXXXX
------------------------------------
Xxx X. Xxxxx
Vice President
DIAMOND ELECTRONICS, INC.
By: /s/ XXX X. XXXXX
------------------------------------
Xxx X. Xxxxx
Vice President
EXXIS TECHNOLOGIES, INC.
By: /s/ XXX X. XXXXX
------------------------------------
Xxx X. Xxxxx
Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
Xxxxxxx X. XxXxxxxx
Vice President
10
11
CONSENT BY GUARANTOR
The undersigned hereby consents to the foregoing Third Amendment to Financing
and Security Agreement and confirms that the certain Guaranty by Individual
dated September 23, 1993 previously executed by the undersigned for the benefit
of Lender hereby is amended and restated as evidenced by the certain Amended
and Restated Guaranty by Individual of even date herewith executed by the
undersigned for the benefit of Lender.
/s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx, individually
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxxxxx X. XxXxxxxx, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same
was the act of said NATIONSBANK OF TEXAS, N.A., and that he executed the same
for the purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 18th day of July, 1995.
/s/ XXXXXX X. XXXXXX
----------------------------------------
NOTARY PUBLIC, STATE OF TEXAS
My Commission Expires:
Xxxxxx X. Xxxxxx
----------------------------- ----------------------------------------
[SEAL] (Printed Name of Notary)
Xxxxxx X. Xxxxxx
Notary Public, State of Texas
My Comm. Expires 03/14/96
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxx X. Xxxxx, known to me to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act
of said ULTRAK, INC. and that he executed the same for the purposes and
considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 18th day of July, 1995.
/s/ XXXXXX X. XXXXXX
----------------------------------------
NOTARY PUBLIC, STATE OF TEXAS
My Commission Expires:
Xxxxxx X. Xxxxxx
----------------------------- ----------------------------------------
[SEAL] (Printed Name of Notary)
Xxxxxx X. Xxxxxx
Notary Public, State of Texas
My Comm. Expires 03/14/96
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxx X. Xxxxx, known to me to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act
of said DENTAL VISION DIRECT, INC., and that he executed the same for the
purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 18th day of July, 1995.
/s/ XXXXXX X. XXXXXX
----------------------------------------
NOTARY PUBLIC, STATE OF TEXAS
My Commission Expires:
Xxxxxx X. Xxxxxx
----------------------------- ----------------------------------------
[SEAL] (Printed Name of Notary)
Xxxxxx X. Xxxxxx
Notary Public, State of Texas
My Comm. Expires 03/14/96
11
00
XXX XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxx X. Xxxxx, known to me to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act
of said JAK PACIFIC VIDEO WARRANTY AND REPAIR SERVICES, INC., and that he
executed the same for the purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 18th day of July, 1995.
/s/ XXXXXX X. XXXXXX
----------------------------------------
NOTARY PUBLIC, STATE OF TEXAS
My Commission Expires:
Xxxxxx X. Xxxxxx
----------------------------- ----------------------------------------
[SEAL] (Printed Name of Notary)
Xxxxxx X. Xxxxxx
Notary Public, State of Texas
My Comm. Expires 03/14/96
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxx X. Xxxxx, known to me to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act
of said DIAMOND ELECTRONICS, INC. and that he executed the same for the
purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 18th day of July, 1995.
/s/ XXXXXX X. XXXXXX
----------------------------------------
NOTARY PUBLIC, STATE OF TEXAS
My Commission Expires:
Xxxxxx X. Xxxxxx
----------------------------- ----------------------------------------
[SEAL] (Printed Name of Notary)
Xxxxxx X. Xxxxxx
Notary Public, State of Texas
My Comm. Expires 03/14/96
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxx X. Xxxxx, known to me to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act
of said EXXIS TECHNOLOGIES, INC., and that he executed the same for the
purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 18th day of July, 1995.
/s/ XXXXXX X. XXXXXX
----------------------------------------
NOTARY PUBLIC, STATE OF TEXAS
My Commission Expires:
Xxxxxx X. Xxxxxx
----------------------------- ----------------------------------------
[SEAL] (Printed Name of Notary)
Xxxxxx X. Xxxxxx
Notary Public, State of Texas
My Comm. Expires 03/14/96
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXX X. XXXXXX, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 18th day of July, 1995.
/s/ XXXXXXXX XXXXXXXXXX
----------------------------------------
NOTARY PUBLIC, STATE OF TEXAS
My Commission Expires:
10/1/97 Xxxxxxxx Xxxxxxxxxx
----------------------------- ----------------------------------------
(Printed Name of Notary)
12
13
EXHIBIT "A"
TO
THIRD AMENDMENT TO FINANCING AND SECURITY AGREEMENT
---------------------------------------------------
EXHIBIT 3.4
FINANCING AND SECURITY AGREEMENT
AMONG
NATIONSBANK OF TEXAS, N.A.
ULTRAK, INC.,
DENTAL VISION DIRECT INC.,
DIAMOND ELECTRONICS, INC.,
EXXIS TECHNOLOGIES, INC., and
JAK PACIFIC VIDEO WARRANTY AND REPAIR SERVICES, INC.
Locations of Collateral
All Inventory and Equipment owned by each Borrower is located at the following
locations:
=============================================================================================================================
ADDRESS OF LOCATION COUNTY OWNED OR LEASED
[IF LEASED, NAME OF LANDLORD]
=============================================================================================================================
ULTRAK, INC.
=============================================================================================================================
0000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxx Leased
Xxxxxxxxxx, Xxxxx 00000 Champion Circle/TCEP II
Joint Venture
-----------------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxxxx Xxxx Xxxxxxx Leased
Xxxxxxxxxx, Xxxxxxxx 00000 Superior Investments I, Inc.
-----------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxx Xxxx Arundel Leased
Xxxxxxxxx, Xxxxxxxx 00000 Annapolis Commerce Park
Limited Partnership
-----------------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000 DuPage Leased
Xxxxxxx Xxxxx, Xxxxxxxx 00000 Xxxxxxxx Properties, Inc.
=============================================================================================================================
DENTAL VISION DIRECT, INC.
=============================================================================================================================
0000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxx Leased
Xxxxxxxxxx, Xxxxx 00000 Champion Circle/TCEP II
Joint Venture
=============================================================================================================================
DIAMOND ELECTRONICS, INC.
=============================================================================================================================
0000 Xxxxxxxx Xxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxx 00000
=============================================================================================================================
EXXIS TECHNOLOGIES, INC.
=============================================================================================================================
0000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxx Leased
Xxxxxxxxxx, Xxxxx 00000 Champion Circle/TCEP II
Joint Venture
=============================================================================================================================
JAK PACIFIC VIDEO WARRANTY AND REPAIR SERVICES, INC.
=============================================================================================================================
0000 Xxxxx Xxxxx, Xxxxx X Xxx Xxxxx Leased
Xxxxx, XX 00000 Poway Industrial Park
=============================================================================================================================
13
14
EXHIBIT "B"
TO
THIRD AMENDMENT TO FINANCING AND SECURITY AGREEMENT
---------------------------------------------------
EXHIBIT 5.6
FINANCING AND SECURITY AGREEMENT
AMONG
NATIONSBANK OF TEXAS, N.A.
ULTRAK, INC.,
DENTAL VISION DIRECT INC.,
DIAMOND ELECTRONICS, INC.,
EXXIS TECHNOLOGIES, INC., and
JAK PACIFIC VIDEO WARRANTY AND REPAIR SERVICES, INC.
Share Ownership
Ownership:
Ultrak, Inc. is publicly owned. Thirty two and 38/100 percent 132.38%) of the
Voting Stock of Ultrak, Inc. and one hundred percent (100%) of the convertible
preferred stock are owned of record and beneficially by Xxxxxx X. Xxxxxx.
One hundred percent (100%) of the Voting Stock of Diamond Electronics, Inc. is
owned of record and beneficially by Ultrak, Inc.
One hundred percent (100%) of the Voting Stock of Dental Vision Direct, Inc. is
owned of record and beneficially by Ultrak, Inc.
Eighty percent (80%) of the Voting Stock of JAK Pacific Video Warranty and
Repair Services, Inc. is owned of record and beneficially by Ultrak, Inc. The
balance of such Voting Stock is owned by Xxxxx Xxxxxx, an individua1.
Stock options, warrants, etc.:
Ultrak, Inc:
1. Non-qualified Employee Stock Option Plan - up to 833,334 shares
of no par common stock at varying exercise prices.
2. Convertible Preferred Stock - convertible into 406,981 shares
of no par common stock.
3. Petrus Warrants - pursuant to the 1992 loan agreement, as
amended, 200,000 warrants issued to the Petrus Fund, Ltd.,
convertible into 200,000 shares of no par common stock
14
15
EXHIBIT "C"
TO
THIRD AMENDMENT TO FINANCING AND SECURITY AGREEMENT
---------------------------------------------------
EXHIBIT 1.51a
FINANCING AND SECURITY AGREEMENT
AMONG
NATIONSBANK OF TEXAS, N.A.
ULTRAK, INC.,
DENTAL VISION DIRECT INC.,
DIAMOND ELECTRONICS, INC.,
EXXIS TECHNOLOGIES, INC., and
JAK PACIFIC VIDEO WARRANTY AND REPAIR SERVICES, INC.
Real Property Collatera1.
15
16
EXHIBIT "A"
The Land
Parcel I: Situated in the State of Ohio, County of Fairfield, in the Township
of Greenfield:
Being Lot Number Two (2), in AMENDED PLAT OF GREENFIELD CROSSROADS, as
the same is numbered and delineated upon the recorded Plat thereof, of
record in Plat Book 11, Page 4, Recorder's Office, Fairfield County,
Ohio.
Parcel II: Situated in the State of Ohio, County of Fairfield, in the Township
of Greenfield:
Being Lot Number Five (5), in AMENDED PLAT OF GREENFIELD CROSSROADS,
as the same is numbered and delineated upon the recorded Plat thereof,
of record in Plat Book 11, Page 4, Recorder's Office, Fairfield
County, Ohio.
Parcel III:
Easement from the County Commissioners of Fairfield County, Ohio, to
Xxxxx Industries, Inc., dated June 24, 1974, received for record June
26, 1974, at 1:50 a.m., and recorded in Volume 439, Page 240, records
of Deeds, Fairfield County, Ohio.
