EXHIBIT:(D)
NINTH AMENDMENT TO OPERATIVE AGREEMENTS
This Ninth Amendment to Operative Agreements dated effective as of
September 27, 2001 (this "Amendment"), is by and among 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"), XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION
(successor to Xxxxx Fargo Bank (Texas), National Association, "XXXXX FARGO") and
BANK ONE, N.A. ("BANK ONE"), as lenders (subject to the definition of Lenders in
Appendix A to the Participation Agreement, individually, a "LENDER" and
collectively, the "LENDERS") and Xxxxx Fargo, as administrative agent for the
Lenders (in such capacity, the "AGENT").
RECITALS:
A. The parties hereto and Bank One, as the Holder of the Certificates
issued with respect to the Ultrak Trust 1996-1 (evidencing 100% of the Holder
Amount) 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");
B. The Holder Amount has been paid in full and no Holder currently
exists.
C. The parties hereto (each an "AMENDMENT PARTY") desire that the
Operative Agreements be amended to change certain definitions, to add a
definition and change certain other provisions; and
D. The Lenders have advised Lessee, Guarantor, and Owner Trustee
(collectively, the "DEBTORS") of (and by their execution hereof the Debtors
acknowledge) the occurrence of Events of Default under the Operative Agreements
arising by reason of the Guarantor's failure to comply with: (i) Section 6.01
(Leverage Ratio) of the Guaranty Agreement for the periods ended June 30, 2000,
September 30, 2000, December 31, 2000, March 31, 2001 and June 30, 2001; (ii)
Section 6.02 (Debt Service Coverage Ratio) of the Guaranty Agreement for the
periods ended September 30, 2000, December 31, 2000, March 31, 2001, and June
30, 2001; and (iii) Section 6.03 (Minimum Net Worth) of the Guaranty Agreement
for the periods ended December 31, 2000, March 31, 2001, and June 30, 2001 (the
"EXISTING DEFAULTS"). Without limiting the effect of any such Events of Default,
such Events of Default constitute Guaranty Events of Default, Lease Events of
Default, and Credit Agreement Events of Default under the terms of the Guaranty
Agreement, the Lease, and the Credit Agreement, respectively.
E. The Debtors have requested that the Lenders forbear from exercising
its available rights and remedies arising as a result of the Existing Defaults
and the Lenders are willing to forebear from exercising its available rights and
remedies, upon and subject to the terms and conditions set forth in this
Agreement.
NINTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 1
F. The Amendment Parties are willing to provide for and consent to such
amendments and forbearance subject to the terms and provisions of this
Amendment.
NOW, THEREFORE, BE IT RESOLVED THAT, in consideration of the premises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Capitalized terms used in this Amendment, and not
otherwise defined herein, shall have the same meanings as used in the
Participation Agreement included as one of the Operative Agreements and in
Appendix A to such Participation Agreement, as the same may have been or
hereafter be amended or otherwise modified from time to time, including by this
Amendment.
ARTICLE 2
Amendments
Section 2.1 Existing Definition. The following definition appearing in
Appendix A to the Participation Agreement is hereby amended to read in its
entirety as follows:
"ABR", from and after the date of the Ninth Amendment to Operative
Agreements, shall mean, and in all instances constitute a reference to, a fixed
rate of 13% per annum.
Section 2.2 Deletion. From and after the date of the Ninth Amendment to
Operative Agreements, references to "Applicable Percentage" shall be deleted,
and in all instances be removed, from the Operative Agreements.
Section 2.3 Additional Definition. The following definition is added to
Appendix A to the Participation Agreement in its proper alphabetical order, to
read in its entirety as follows:
"Ninth Amendment to Operative Agreements" means the Ninth
Amendment to Operative Agreements dated as of September 27, 2001, among certain
parties to the Participation Agreement, Xxxxx Fargo and Bank One.
Section 2.4 Amendment to Section 2.8 of the Credit Agreement. Section
2.8 of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
(b) If an Event of Default shall occur, the Loans outstanding
hereunder from time to time shall bear interest at a rate per annum
which is the highest interest rate permitted by applicable law (as of
the date of the Ninth Amendment to Operative Agreements, 18%), in each
case from the date of such Event of Default until the same is cured,
waived as provided in Section 9.1 or the Agent and the Lenders agree to
forbear in respect of such Event of Default.
NINTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 2
Section 2.5 Interest Rates. For the avoidance of doubt, from and after the date
of the Ninth Amendment to Operative Agreements, all amounts payable as interest
on the Loans, all payments of Basic Rent and all other amounts in any manner or
fashion tied to, based upon, or designed to reflect payment of interest on the
Loans shall be at the rate of 13% per annum and no such interest, yield, rent,
etc. will be based upon the "ABR" (as such term was used prior to the Ninth
Amendment), "Eurodollar Rate" or "LIBOR Rate" or any margin in excess thereof;
provided that any default rate of interest (e.g. Section 2.8(b) of the Credit
Agreement) shall be calculated at the highest interest rate permitted by
applicable law for commercial loans of the size outstanding under the Operative
Agreements, subject to any usury or other limitations. No election shall be
available under any circumstances for the Borrower or the Lessor to elect any
rate of interest or rent rate based on the "ABR" (as such term was used prior to
the Ninth Amendment), "Eurodollar Rate" or the "LIBOR Rate".
ARTICLE 3
Forbearance
Section 3.1 Forbearance. Subject to the terms and provisions of this
Agreement, the Lenders agree, until October 31, 2001 or such earlier time as the
Forbearance is terminated as provided in Section 3.2 below (the "TERMINATION
DATE"), to forbear from exercising any of its rights and remedies arising under
the Operative Agreements or otherwise as a result of the Existing Defaults (the
"FORBEARANCE").
Section 3.2 Termination of Forbearance. This Amendment does not
constitute a waiver or forbearance with respect to any Event of Default other
than the Existing Defaults. In the event that prior to the Termination Date any
further Event of Default occurs under the Operative Agreements (i.e., other than
the Existing Defaults), then the Lenders shall have the right and option, in
their discretion and without notice to the Debtors or any Subsidiary guarantors,
to (i) terminate the Forbearance, (ii) refuse to extend additional credit to the
Borrowers under the Operative Agreements, and (iii) exercise any and all of the
rights and remedies under the Operative Agreements or otherwise arising as a
result of such Event of Default or the Existing Defaults. In the event that the
Loans are not paid in full on or before October 31, 2001, Borrower shall be
obligated (and Guarantor shall guaranty) to pay pro rata to the Lenders a
failure fee in the aggregate amount of $25,000.
Section 3.3 Tolling. All periods of limitations specified by statutes
and all defenses of laches or waiver as to the Existing Default will be tolled
and otherwise suspended during the period from the date hereof through the date
which is ninety (90) days after the Termination Date.
Section 3.4 Confirmation of Rights by the Borrowers. As an additional
material inducement to the Lenders to enter into this Amendment, the Debtors
hereby confirm the debts, duties, obligations, liabilities, representations,
warranties, rights, titles, powers, and privileges existing by virtue of the
Operative Agreements or otherwise, until all of the obligations evidenced by the
Operative Agreements, or otherwise, have been paid in full, and hereby agree
that this Amendment shall not in any way or manner release, waive, discharge,
affect, change, modify, or impair, and the Debtors hereby affirm, the debts,
duties, obligations, liabilities,
NINTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 3
representations, warranties, rights, titles, powers, and privileges existing by
virtue of, arising under or out of, in connection with or relating to the
Operative Agreements, or otherwise.
ARTICLE 4
Ratifications, Representations and Warranties
Section 4.1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Operative Agreements and, except as expressly modified and
superseded by this Amendment, the terms and provisions of the Operative
Agreements are ratified and confirmed and shall continue in full force and
effect. Each Amendment Party that is a party to each thereof agrees that each of
the Operative Agreements, as amended hereby, shall continue to be legal, valid,
binding and enforceable in accordance with their respective terms.
Section 4.2 Representations and Warranties. Lessee, Borrower and
Guarantor each hereby represents and warrants to the Lenders that: (i) the
execution, delivery and performance of this Amendment and any and all other
documents executed and/or delivered in connection herewith or therewith
(collectively, the "AMENDMENT DOCUMENTS") have been authorized by all requisite
action on the part of Lessee, Borrower and Guarantor and will not violate the
certificate or articles of incorporation, partnership agreement or bylaws of
Lessee, Borrower or Guarantor; (ii) the representations and warranties contained
in the Operative Agreements, as amended hereby, are true and correct on and as
of the date hereof as though made on and as of the date hereof (except to the
extent that such representations and warranties were expressly, in the Operative
Agreements, made only in reference to a specific date); (iii) except for the
Existing Defaults, no Default or Event of Default has occurred and is
continuing; (iv) each of Lessee, Borrower and Guarantor is in full compliance
with all covenants and agreements contained in the Operative Agreements, as
amended hereby; and (v) Lessee and Guarantor have consulted with their tax
advisors and public accountants concerning the amendments and requirements made
in accordance with this Amendment (and all prior Amendments and previous
payments) and the effect, if any, they may have on the characterization of the
transactions governed by the Operative Agreements and any resulting tax
liability and Lessee and Guarantor have determined to enter into this Amendment
with the other Amendment Parties on an arms-length basis and regardless of any
such tax consequences (which shall be for the sole account of Lessee and
Guarantor).
ARTICLE 5
Miscellaneous
Section 5.1 Conditions to Effectiveness. This Amendment shall be
effective upon the execution hereof by each Amendment Party and upon delivery to
the Lenders of each of the following documents and compliance with the following
requirements:
(a) Resolutions of Boards of Directors. Resolutions of the Board of
Directors of each of Lessee, Borrower, Guarantor and each Domestic Subsidiary
certified by its Secretary or an Assistant Secretary which authorize its
execution, delivery and performance of this Amendment,
NINTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 4
the Ratification of the Domestic Subsidiary Guaranties and each other Amendment
Document to which it is or is to be a party and all documents evidencing other
necessary corporate or other action or necessary governmental or other approvals
with respect to this Amendment, the Ratification of the Domestic Subsidiaries
Guarantees and the other Amendment Documents;
(b) Incumbency Certificate. A certificate of incumbency certified by
the Secretary or an Assistant Secretary of each of Lessee, Borrower, Guarantor
and each Domestic Subsidiary certifying the names of its officers (i) who are
authorized to sign this Amendment and the other Amendment Documents (including
the certificates contemplated herein) together with specimen signatures of each
such officer and (ii) who will, until replaced by other officers duly authorized
for that purpose, act as its representative for the purposes of signing
documentation and giving notices and other communications in connection with
this Amendment, the Amendment Documents, the Operative Agreements and the
transactions contemplated hereby and thereby;
(c) Copies of Organizational Documents. Certified copies of any
amendments of or other changes to the charter documents of Lessee, Borrower,
Guarantor or any Domestic Subsidiary since November 30, 2000;
(d) Forbearance Fee. Borrower shall have paid pro rata to the Lenders a
forbearance fee in the aggregate amount of $25,000;
(e) Principal Payment. Borrower shall have paid a minimum of $100,000
in reduction of the principal balance of the Loans on or before the date hereof;
and
(f) Attorneys' Fees and Expenses. The costs and expenses of Agent and
all the Lenders (including attorneys' fees) shall have been paid in full.
Section 5.2 Additional Principal Payment. On or before September 30,
2001, Borrower shall pay a minimum of $100,000 in reduction of the principal
balance of the Loans, which amount shall be in addition to the amount required
to be paid pursuant to Section 5.1(e) above.
Section 5.3 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any of the other
Operative Agreements (including any document furnished in connection with this
Amendment) shall survive the execution and delivery of this Amendment, and no
investigation by Lenders shall affect the representations and warranties or the
right of Lenders to rely upon them.
Section 5.4 Reference to Operative Agreements. Each of the Operative
Agreements and any and all other agreements, documents, or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Operative Agreements, as amended hereby and by the Amendment
Documents, including, without limitation, the Domestic Subsidiary Guaranties,
are hereby amended so that any reference in such Operative Agreements and other
documents and agreements to any of the Operative Agreements shall mean a
reference to such Operative Agreement as amended hereby or thereby.
Section 5.5 Expense of the Lenders. As provided in the Operative
Agreements, Borrower agrees to pay on demand all costs and expenses incurred by
Agent and the Lenders in
NINTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 5
connection with the preparation, negotiation, execution or enforcement of this
Amendment and the other documents executed pursuant hereto, including, without
limitation, title and survey costs, legal fees, appraisal review fees and
environmental review fees.
Section 5.6 Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 5.7 Applicable Law. THIS AMENDMENT 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 5.8 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of Amendment Parties and their respective successors
and assigns, except none of Lessee, Borrower or Guarantor may assign or transfer
any of their rights or obligations hereunder without the prior written consent
of the Lenders.
Section 5.9 Counterparts. This Amendment may be executed in one or more
counterparts, and on telecopy counterparts each of which when so executed shall
be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
Section 5.10 Effect of Waiver; Forbearance of Certain Defaults. No
consent or waiver, express or implied, by the Lenders to or for any breach of or
deviation from any covenant, condition or duty by Lessee, Borrower or Guarantor
shall be deemed a consent or waiver to or of any other breach of the same or any
other covenant, condition or duty. Effective only upon receipt by Agent of this
Amendment executed by each Person named below and fulfillment of the conditions
to effectiveness set forth in Section 5.1 above, this Amendment shall become
notice to Guarantor that Agent and the Lenders hereby agree to forbear from
exercising their rights and remedies arising by reason of the Existing Defaults
as more fully set forth, and subject to the limitation of Article 3 hereof.
Except as stated above, (i) this waiver is not a consent or waiver in respect of
any existing or future Events of Default or Defaults or a waiver of Lenders'
rights to insist upon Guarantor's compliance with its obligations under each
Operative Agreement and (ii) each Operative Agreement is unchanged and continues
in full force and effect.
Section 5.11 Complete Release of Lenders and Others. Each of Lessee and
Guarantor hereby unconditionally release and forever discharge the Lenders, the
Agent, and each of their successors, assigns, agents, directors, officers,
employees, affiliates and attorneys (collectively, the "INDEMNITEES") from all
Claims (as defined below) and jointly and severally agree to indemnify the
Indemnitees, and hold them harmless from any and all claims, losses, causes of
action, costs, and expenses of every kind or character in connection with the
Claims, the Existing Default, or any other breach of any Operative Agreements.
As used in this Agreement, the term "Claims" means any and all possible claims,
demands, actions, causes of actions, costs, expenses, and liabilities
whatsoever, known or unknown, at law or in equity, originating in whole or in
part, on or before the date of this Amendment, which Lessee or Guarantor, or any
of their agents, employees, subsidiaries or affiliates may now or hereafter have
against the Indemnitees,
NINTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 6
if any, and irrespective of whether any such Claims arise out of contract, tort,
violation of laws, or regulations, or otherwise in connection with any of the
Operative Agreements, including, without limitation, any contracting for,
charging, taking, reserving, collecting, or receiving interest in excess of the
maximum rate or interest chargeable under applicable law and any loss, cost, or
damage, of any kind or character, arising out of or in any way connected with or
in any way resulting from the acts, actions, or omissions of the Indemnitees,
including, without limitation, any breach of fiduciary duty, breach of any duty
of fair dealing, breach of confidence, breach of funding commitment, undue
influence, duress, economic coercion, conflict of interest, negligence, bad
faith, malpractice, violations of the Racketeer Influenced and Corrupt
Organizations Act, intentional or negligent infliction of mental distress,
tortious interference with contractual relations, tortious interference with
corporate governance or prospective business advantage, breach of contract,
deceptive trade practices, libel, slander, conspiracy, or any claim for
wrongfully accelerating the Notes or wrongfully attempting to foreclose on any
collateral, but in each case only to the extent permitted by applicable law.
Each of Lessee and Guarantor agrees that the Lenders and/or the Agent have no
fiduciary or similar obligations to Lessee or Guarantor and that their
relationships are strictly that of creditor and debtor. This release is accepted
by the Lenders and/or the Agent pursuant to this Agreement and shall not be
construed as an admission of liability by the Lenders and/or the Agent. Lessee
and Guarantor represent and warrant that they are the current legal and
beneficial owner of all Claims, if any, released hereby and have not assigned,
pledged, or contracted to assign or pledge any such Claim to any other person.
Section 5.12 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 5.13 Cooperation. Lessee and Guarantor will cooperate fully
with the Agent's property appraiser and its environmental consultant by
permitting reasonable access to, and supplying information about, the Property.
Section 5.14 ENTIRE AGREEMENT. THIS AMENDMENT, THE AMENDMENT DOCUMENTS
AND ALL OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN
CONNECTION WITH THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDING, WHETHER WRITTEN OR ORAL, RELATING TO THIS
AMENDMENT, 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 AMONG THE PARTIES HERETO.
NINTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 7
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment effective as of the date first written above.
ULTRAK OPERATING, L.P., a Texas limited ULTRAK, INC., as the Guarantor
partnership, as the Construction Agent
and as the Lessee
By: Ultrak G.P., Inc., By: /s/ XXXXX X. XXXXXX
its sole general partner ----------------------------
Name: Xxxxx X. Xxxxxx
--------------------------
Title: Senior Vice-President
and Chief Financial
Officer
-------------------------
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Senior Vice-President
and Chief Financial
Officer
-----------------------------
XXXXX FARGO BANK TEXAS,
NATIONAL ASSOCIATION, as a Lender
XXXXX FARGO BANK NORTHWEST, as the Agent
NATIONAL ASSOCIATION (formerly and
First Security Bank, National Association), By: /s/ XXX XXXXXXXXXXXX
not individually, except as expressly ----------------------------
stated herein, but solely as the Name: Xxx Xxxxxxxxxxxx
Owner Trustee under the Ultrak Trust --------------------------
1996-1 By: Title: Vice-President
-------------------------
BANK ONE, TEXAS, N.A., as a Lender
By: /s/ XXX XXXXXXXXXXXX
--------------------------------
Name: Xxx Xxxxxxxxxxxx
------------------------------
Title: Vice-President
----------------------------- By: /s/ XXXXX X. XXXXX
--------------------------------
Name: Xxxxx X. Xxxxx
------------------------------
Title: First Vice-President
-----------------------------
NINTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 8
RATIFICATION
Each of the undersigned parties hereby expressly (i) acknowledges the
terms of the foregoing Ninth Amendment; (ii) ratifies and affirms its
obligations under its Subsidiary Guaranty Agreement dated March 22, 2000; and
(iii) acknowledges, renews, and extends its continued liability under such
Subsidiary Guaranty Agreement and agrees that such Subsidiary Guaranty Agreement
remains in full force and effect with respect to the Lessee Obligations (as such
term is defined in such Subsidiary Guaranty Agreement), as amended.
The foregoing acknowledgment and ratification shall be evidenced by
signing and dating in the spaces provided below.
ULTRAK GP, INC.
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Senior Vice-President and Chief
Financial Officer
-------------------------------------
Date:
--------------------------------------
ULTRAK LP, INC.
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Senior Vice-President and Chief
Financial Officer
-------------------------------------
Date:
--------------------------------------
DIAMOND ELECTRONICS, INC.
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Senior Vice-President and Chief
Financial Officer
-------------------------------------
Date:
--------------------------------------
MONITOR DYNAMICS, INC.
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Senior Vice-President and Chief
Financial Officer
-------------------------------------
Date:
--------------------------------------
NINTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 9
ABM DATA SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Senior Vice-President and
Chief Financial Officer
-------------------------------------
Date:
--------------------------------------
SECURITY WARRANTY, INC.
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Senior Vice-President and
Chief Financial Officer
-------------------------------------
Date:
--------------------------------------
NINTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 10
