TENTH AMENDMENT TO OPERATIVE AGREEMENTS
This Tenth Amendment to Operative Agreements dated effective as of
November 9, 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, 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") and Xxxxx Fargo, as administrative agent for the
Lenders (in such capacity, the "Agent").
RECITALS:
A. The parties hereto 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 parties hereto (each an "Amendment Party") desire that the
Operative Agreements be amended to change certain definitions, to add certain
definitions and change certain other provisions; and
C. The Lenders have advised Lessee, Guarantor, and Owner Trustee
(collectively, the "Debtors"; and by their execution hereof the Debtors
acknowledge) that an Event of Default exists under the Operative Agreements as a
result of Debtors' failure to deliver the Compliance Certificate for the quarter
ending September 30, 2001 (the "CC Default"). The Lenders have also advised
Debtors that, as of September 30, 2001, various Events of Default exist under
the Operative Agreements, including but not limited to: (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, June 30, 2001 and
September 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, June 30, 2001 and September 30, 2001; and (iii) Section 6.03
(Minimum Net Worth) of the Guaranty Agreement for the periods ended December 31,
2000, March 31, 2001, June 30, 2001 and September 30, 2001 (all the foregoing
and other defaults existing prior to September 30, 2001, collectively, the
"Other Defaults"; and together with the CC Defaults, collectively, 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.
D. 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.
E. 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 Definitions. Effective as of the date hereof, the
following definitions appearing in Appendix A to the Participation Agreement are
hereby amended to read in their entirety as follows:
"ABR", from and after the date of the Tenth Amendment to
Operative Agreements, shall mean, and in all instances constitute
a reference to, a fixed rate of 14% per annum.
"Maturity Date" shall mean December 17, 2001.
"Tenth Amendment to Operative Agreements" means the Tenth
Amendment to Operative Agreements dated as of November 9, 2001,
among certain parties to the Participation Agreement, Xxxxx Fargo
and Bank One.
Section 2.2 Amendment to Section 2.8 of the Credit Agreement. Effective
as of the date hereof, 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 Tenth 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.
Section 2.3 Interest Rates. For the avoidance of doubt, from and after
the date of the Tenth 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 14% per annum and no such
interest, yield, rent, etc. will be based upon the "ABR" (as such term was used
prior to the Tenth Amendment), "Eurodollar Rate" or "LIBOR Rate" or any margin
in excess thereof; provided that any default rate of interest (e.g. ss. 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 Tenth Amendment), "Eurodollar Rate" or the "LIBOR Rate".
ARTICLE 3
Forbearance and Additional Covenants.
Section 3.1 Additional Covenant. The Borrower agrees as follows:
(a) Borrower shall pledge, as additional Collateral, Money
Market Account No._______________ maintained with Xxxxx Fargo in
the amount of $500,000 (the "Money Market Account");
(b) The Borrower shall endeavor to obtain a commitment letter
(the "Commitment Letter") from a lending institution showing a
commitment to repay all accrued and unpaid interest, outstanding
principal, expenses and other amounts owing on the Loans (the
"Refinancing"), and such Commitment Letter shall not contain any
conditions that Borrower cannot reasonably be expected to satisfy.
(c) If the Commitment Letter is not obtained on or prior to
November 30, 2001, the Agent, in its sole discretion, may
liquidate the Money Market Account and apply the funds received
therefrom toward the repayment of the Loans in such order and
manner as the Lenders elect;
(d) If the Commitment Letter is obtained on or prior to
November 30, 2001, all proceeds of the Refinancing shall be
applied toward the repayment of all accrued and unpaid interest,
outstanding principal, expenses and other amounts owing, until the
Loans are paid in full; and
(e) Net proceeds of all borrowings (other than those pursuant
to the Amended and Restated Credit Agreement among the Lessee, the
Guarantor, and American National Bank and Trust Company of
Chicago, dated March 22, 2000, as the same has been and may
hereafter be amended from time to time (the "Revolver"), equity
investments and asset sales (other than sales of collateral
securing the Revolver) by Lessee or any Subsidiary shall be
applied to the repayment of the Loans in such order and manner as
the Lenders may elect.
Section 3.2 Forbearance. Subject to the terms and provisions of this
Agreement, the Lenders agree, until December 17, 2001 or such earlier time as
the Forbearance is terminated as provided in Section 3.3 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 3.3 Termination of Forbearance; Etc.. This Amendment does not
constitute a waiver or forbearance with respect to any Event of Default other
than the Existing Defaults. In addition, failure to obtain the Commitment Letter
shall also constitute an Event of Default under the Operative Agreements. 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 December 17, 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 3.4 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 3.5 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, 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, as applicable, this Amendment, the Ratification of the
Domestic Subsidiary Guaranties, the Pledge Agreement (defined
below), 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, the Pledge Agreement, 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 as applicable, the Pledge Agreement, 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, the
Pledge Agreement, 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 $50,000 (the
"Forbearance Fee"), $25,000 of which shall be credited to accrued
but unpaid interest (provided that Lessee provides, on or before
November 30, 2001, the Commitment Letter).
(e) Principal Payment. Borrower shall have paid a minimum of
$500,000 in reduction of the principal balance of the Loans on or
before November 15, 2001;
(f) Pledge Agreement. Borrower shall have executed a Pledge
Agreement (the "Pledge Agreement"), pledging the Money Market
Account as Collateral for the Loans and its other Obligations
under the Operative Agreements; and
(g) 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 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 5.3 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 5.4 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 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 5.5 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 5.6 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 5.7 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 5.8 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 5.9 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 5.10 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 "Indemnities") from all
Claims (as defined below) and jointly and severally agree to indemnify the
Indemnities, 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 Indemnities, 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 Indemnities, 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 5.11 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 5.12 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 5.13 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.
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 ULTRAK, INC., as the Guarantor
limited partnership, as the
Construction Agent and as the Lessee By:
----------------------------------
By: Ultrak G.P., Inc., its sole Name:
general partner --------------------------------
Title:
By: ------------------------------
----------------------------------
Name: XXXXX FARGO BANK TEXAS,
-------------------------------- NATIONAL ASSOCIATION, as a Lender and
Title: as the Agent
------------------------------
By:
XXXXX FARGO BANK NORTHWEST, NATIONAL ----------------------------------
ASSOCIATION (formerly and as the Name:
Agent First Security Bank, National --------------------------------
Association), not individually, Title:
except as expressly stated herein, ------------------------------
but solely as the Owner Trustee under
the Ultrak Trust 1996-1 BANK ONE, NA, as a Lender
By:
---------------------------------- By:
Name: ----------------------------------
-------------------------------- Name:
Title: --------------------------------
------------------------------ Title:
------------------------------
RATIFICATION
Each of the undersigned parties hereby expressly (i) acknowledges the
terms of the foregoing Tenth 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:
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Name:
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Title:
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Date:
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ULTRAK LP, INC.
By:
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Name:
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Title:
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Date:
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DIAMOND ELECTRONICS, INC.
By:
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Name:
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Title:
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Date:
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MONITOR DYNAMICS, INC.
By:
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Name:
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Title:
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Date:
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ABM DATA SYSTEMS, INC.
By:
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Name:
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Title:
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Date:
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SECURITY WARRANTY, INC.
By:
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Name:
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Title:
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