EXHIBIT:(A)
(Execution Version 6/5/01)
SEVENTH AMENDMENT AND WAIVER
ULTRAK OPERATING, L.P.
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS SEVENTH AMENDMENT (this "Agreement") is executed as of and
effective as of May 15, 2001, among ULTRAK OPERATING, L.P., a Texas limited
partnership ("Borrower"), ULTRAK, INC., a Delaware corporation ("Parent"),
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO (as a "Lender"), XXXXXX
TRUST AND SAVINGS BANK (as a "Lender"), and AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO (as "Administrative Agent" for present and future Lenders).
RECITALS
Borrower, Parent, Administrative Agent and Lenders are parties to that
certain First Amended and Restated Credit Agreement (as previously, hereby or
hereafter renewed, extended, modified, supplemented, amended and restated, the
"Credit Agreement") dated as of May 17, 2000, providing for, among other things,
a secured revolving credit facility. The parties to this Agreement have agreed
to amend the Credit Agreement as set forth herein.
AGREEMENTS
NOW THEREFORE, in consideration of the premises, and for other good,
fair and valuable consideration, the receipt, adequacy and reasonable
equivalency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms; References. Unless otherwise stated in this Agreement, terms
defined in the Credit Agreement have the same meanings when used in this
Agreement. All references in the Credit Documents to the "Credit Agreement"
refer to the Credit Agreement as heretofore amended and as amended by this
Agreement. This Agreement is a "Credit Document" referred to in the Credit
Agreement, and the provisions relating to Credit Documents in the Credit
Agreement are incorporated by reference, the same as if set forth verbatim in
this Agreement.
2. Amendments. The Credit Agreement is hereby amended as follows:
(a) Section 10.1 is amended in its entirety to read as follows:
10.1 Minimum Operating EBITDA. For the three months ending
March 31, 2001, the consolidated Operating EBITDA of the Companies
shall not be less than a negative Eight Hundred Fifty Thousand Dollars
(-$850,000). For the six months ending June 30, 2001, the consolidated
Operating EBITDA of the Companies shall not be less than a positive One
Million Three Hundred Thousand Dollars (+$1,300,000).
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Ultrak Credit Agreement
(b) Section 10.3 is amended in its entirety to read as follows:
10.3 Minimum Tangible Net Worth. The Companies' consolidated
Tangible Net Worth shall not at any time be less than the sum of (a)
the Base Amount plus (b), for any determination date after December 31,
2001, an amount equal to seventy five percent (75%) of the Companies'
consolidated Net Income (without deduction for losses) for each fiscal
quarter ending after September 30, 2001, and on or before the date of
determination plus (c) one hundred percent (100%) of the net (i.e.,
gross less usual and customary brokerage and after related costs and
expenses) proceeds from the issuance and sale of any equity securities
by any Company after December 31, 2000, other than the proceeds of any
issuance and sale of any capital stock which is required to be
redeemed, or is redeemable at the option of the holder, if certain
events or conditions occur or exist or otherwise. As used herein, "Base
Amount" means the sum of (i) Forty Six Million Five Hundred Thousand
Dollars ($46,500,000) from January 1, 2001 to and including September
30, 2001, Forty Eight Million Dollars ($48,000,000) from October 1,
2001 to and including December 31, 2001 and Fifty Three Million Five
Hundred Thousand Dollars ($53,500,000) thereafter., plus (ii) the
amount of any deferred tax benefits which will lower future statutory
tax liability when Borrower reports taxable income if and to the extent
the independent auditors for Borrower permits Borrower to include such
deferred tax benefits as an asset on Borrower's balance sheet.
(c) Section 10.4 is amended in its entirety to read as follows:
10.4 Capital Expenditures. For any fiscal year of Borrower,
Capital Expenditures for the acquisition, construction, improvement or
replacement of land, buildings, equipment or other fixed or capital
assets or leaseholds (excluding expenditures properly chargeable to
repairs or maintenance) for the Companies shall not exceed (a) Six
Million Dollars ($6,000,000) for the fiscal year ending December 31,
2000, and, (b) for the fiscal year ending December 31, 2001, the sum of
Two Million Dollars ($2,000,000) plus up to an additional Two Million
Dollars ($2,000,000) for capitalized software costs.
3. Waivers.
(a) Administrative Agent and Lenders hereby waive any Event of Default
or Potential Default arising under Section 10.1 of the Credit Agreement
with respect to the fact that the negative consolidated Operating
EBITDA for the twelve months ended March 31, 2001 was greater than a
negative Eight Hundred Fifty Thousand Dollars (-$850,000).
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Ultrak Credit Agreement
(b) Administrative Agent and Lenders hereby waive any Event of Default
or Potential Default arising under Section 10.3 of the Credit Agreement
with respect to the fact that the Tangible Net Worth as of March 31,
2001 was less than the required amount.
(c) Administrative Agent and Lenders hereby grant a temporary,
revocable waiver (the "Fourth TROL Default Waiver") with respect to the
Event of Default existing on the date hereof under Section 11.10 of the
Credit Agreement as a result of the fact that a TROL Default has
occurred because of the failure of the Companies (i) to maintain as of
September 30 and December 31, 2000 and March 31, 2001 the leverage
ratio required by Section 6.01 of the Amended and Restated Guaranty
dated as of March 22, 2000 given by Parent under the TROL Financing for
the benefit of the TROL Lenders (the "TROL Guaranty") and the debt
service coverage ratio required by Section 6.02 of the TROL Guaranty
and (ii) to maintain as of December 31, 2000 and March 31, 2001 the
minimum net worth required by Section 6.03 of the TROL Guaranty. The
Fourth TROL Default Waiver will automatically expire and terminate on
the earlier of (1) the date on which Administrative Agent or either
Lender exercises its unconditional revocation right pursuant to the
next sentence hereof, (2) the date on which the TROL Lenders accelerate
the maturity of the Lease Obligations (as defined in the TROL Guaranty)
and (3) the date on which the TROL Lenders commence the exercise of any
remedies under the TROL Financing Documents. Administrative Agent and
each Lender hereby reserve the absolute and unconditional right to
revoke the Fourth TROL Default Waiver at any time, in the sole
discretion of Administrative Agent or either Lender, with or without
cause, by giving verbal or written notice of such revocation to
Borrower, effective immediately at the time such notice is given (with
any verbal notice to be followed by written notice, but effective as of
the time of the verbal notice).
4. Conditions Precedent. Unless one or more of the following conditions
precedent is waived by Lenders, this Agreement is effective only if, as and
when:
(a) Administrative Agent receives counterparts of this Agreement
executed by Parent, Borrower, Administrative Agent, each Lender and
each Subsidiary whose name appears on the Subsidiary Joinder at the end
of this Agreement (each, a "Ratifying Subsidiary");
(b) Borrower pays in full all fees and expenses due and owing to
Administrative Agent and each Lender, including unpaid fees and
expenses of counsel.
(c) Borrower delivers to Administrative Agent a certificate of the
Secretary of Borrower and the Secretary of Parent certifying as to
resolutions of the board of directors or executive committee of
Borrower and Parent authorizing and approving the execution of this
Agreement.
5. Ratifications. Except as expressly modified and superseded by this Agreement,
the Credit Documents are ratified and confirmed and continue in full force and
effect. The Credit Documents, as amended by this Agreement, continue to be
legal, valid, binding and enforceable in accordance
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Ultrak Credit Agreement
with their respective terms. Without limiting the generality of the foregoing,
Borrower and Parent, and each Ratifying Subsidiary, hereby ratify and confirm
that all Liens heretofore granted to Administrative Agent for the benefit of
Lenders were intended to, do and continue to secure the full payment and
performance of the Obligation. Borrower and Parent agree to perform such acts
and duly authorize, execute, acknowledge, deliver, file and record such
additional assignments, security agreements, modifications or amendments to any
of the foregoing, and such other agreements, documents and instruments as
Administrative Agent may reasonably request in order to perfect and protect
those Liens and preserve and protect the Rights of Administrative Agent and
Lenders in respect of all present and future Collateral.
6. Representations and Warranties. Borrower and Parent hereby, jointly and
severally, represent and warrant to Administrative Agent and Lenders that (a)
this Agreement and any other Credit Documents to be delivered under this
Agreement have been duly executed and delivered by or on behalf of Borrower and
each other Company party to them, are valid and binding upon Borrower and the
other Companies and are enforceable against Borrower and the other Companies in
accordance with their respective terms, except as limited by any applicable
Debtor Relief Laws, (b) no action of, or filing with, any Governmental Authority
is required to authorize, or is otherwise required in connection with, the
execution, delivery and performance by Borrower or any other Company of this
Agreement or any other Credit Document to be delivered under this Agreement, (c)
the execution, delivery and performance by Borrower and the other Companies of
this Agreement and any other Credit Documents to be delivered under this
Agreement do not require the consent of any other Person and do not and will not
constitute a violation of any Laws, agreements or understandings to which
Borrower or any other Company is a party or by which Borrower or any other
Company is bound, (d) the representations and warranties contained in the Credit
Agreement, as amended by this Agreement, and any other Credit Documents are true
and correct in all material respects as of the date of this Agreement, (e) no
Event of Default or Potential Default exists, other than the Events of Default
and Potential Defaults to which the First TROL Default Waiver, Second TROL
Default Waiver and Third TROL Default Waiver relate, and (f) each Company has
performed all of its obligations under the Credit Agreement and other Credit
Documents.
7. Release of All Claims. Borrower, Parent and each Ratifying Subsidiary hereby,
jointly and severally, unconditionally release and forever discharge
Administrative Agent and each Lender and their respective successors, assigns,
agents, directors, officers, employees, affiliates, accountants, consultants,
contractors, advisors and attorneys (collectively, the "Benefited Parties") from
all Claims (as defined below) and jointly and severally agree to indemnify the
Benefited Parties, 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. 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, which Borrower, Parent or any Ratifying Subsidiary, or any of
their agents, employees or affiliates may now or hereafter have or claim against
any of the Benefited Parties and irrespective of whether any such Claims arise
out of contract, tort, violation of Law or otherwise in connection with any of
the Credit Documents, including any contracting for, charging, taking,
reserving, collecting or receiving
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Ultrak Credit Agreement
interest in excess of the maximum rate on 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 actions or omissions of
the Benefited Parties, including any breach of fiduciary duty, breach of any
duty of good faith or fair dealing, breach of confidence, breach of funding
commitment other than the express funding commitments contained in the Credit
Agreement, 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 any obligations or wrongfully attempting to
foreclose on any collateral. Borrower, Parent and each Ratifying Subsidiary,
jointly and severally, agree that none of the Benefited Parties have fiduciary
or similar obligations to Borrower, Parent or any agents, employees or
affiliates of Borrower or Parent and that their relationships are strictly that
of creditor and debtor. This release is accepted by Administrative Agent and
each Lender pursuant to this Agreement and shall not be construed as an
admission of liability by Administrative Agent, any Lender or any other
Benefited Party.
8. Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if all signatories had signed the same document.
9. Parties Bound. This Agreement binds and inures to the benefit of Borrower,
Lenders and Administrative Agent and, subject to Section 14.12 of the Credit
Agreement, their respective successors and assigns.
10. ENTIRETY. THIS AGREEMENT, THE CREDIT AGREEMENT AS AMENDED BY THIS AGREEMENT,
AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
FOR THE TRANSACTIONS HEREIN AND THEREIN, AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT BETWEEN THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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Ultrak Credit Agreement
Executed as of and effective as of May 15, 2001.
ULTRAK, INC., as Parent
By: /s/ XXXXX X. XXXXXX
--------------------------------------------------
Xxxxx X. Xxxxxx, Senior Vice President and
Chief Financial Officer
ULTRAK OPERATING, L.P. as Borrower
By: Ultrak GP, Inc. its General Partner
By: /s/ XXXXX X. XXXXXX
--------------------------------------------------
Xxxxx X. Xxxxxx, Senior Vice President and
Chief Financial Officer
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO
as Administrative Agent and a Lender
By: /s/ XXXXX X. XXXXX
--------------------------------------------------
Xxxxx X. Xxxxx, Vice President
XXXXXX TRUST AND SAVINGS BANK, as a Lender
By: /s/ XXXXX XXXXXXXXXXXX
--------------------------------------------------
Xxxxx Xxxxxxxxxxxx, Vice President
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Ultrak Credit Agreement
SUBSIDIARY JOINDER
To induce Administrative Agent and Lenders to enter into this
Agreement, each Subsidiary named below (a) consents and agrees to this
Agreement's execution and delivery, (b) ratifies and confirms that all
guaranties, assurances and Liens granted, conveyed or assigned to Administrative
Agent for the benefit of Lenders under the Credit Documents are not released,
diminished, impaired, reduced or otherwise adversely affected by this or any
prior amendment, and continue to guarantee, assure and secure the full payment
and performance of the Obligation, (c) agrees to perform such acts and duly
authorize, execute, acknowledge, deliver, file and record such additional
guaranties, assignments, security agreements, deeds of trust, mortgages and
other agreements, documents, instruments and certificates as Administrative
Agent may reasonably deem necessary or appropriate in order to create, perfect,
preserve and protect those guaranties, assurances and Liens, and (d) waives
notice of acceptance of this consent and agreement, which consent and agreement
binds each of the undersigned and their respective successors and permitted
assigns and inures to the benefit of Administrative Agent and Lenders and their
respective successors and permitted assigns.
ULTRAK GP, INC.
By: /s/ XXXXX X. XXXXXX
--------------------------------------------------
Xxxxx X. Xxxxxx, Senior Vice President and
Chief Financial Officer
ULTRAK, LP, INC.
By: /s/ XXXXX X. XXXXXX
-------------------------------------------------
Xxxxx X. Xxxxxx, Senior Vice President and
Chief Financial Officer
DIAMOND ELECTRONICS, INC.
By: /s/ XXXXX X. XXXXXX
--------------------------------------------------
Xxxxx X. Xxxxxx, Senior Vice President and
Chief Financial Officer
MONITOR DYNAMICS, INC.
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx, Senior Vice President and
Chief Financial Officer
ABM DATA SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXX
--------------------------------------------------
Xxxxx X. Xxxxxx, Senior Vice President and
Chief Financial Officer
SECURITY WARRANTY, INC.
By: /s/ XXXXX X. XXXXXX
--------------------------------------------------
Xxxxx X. Xxxxxx, Senior Vice President and
Chief Financial Officer
SECURITY WARRANTY (BVI) LTD.
By: /s/ XXXXX X. XXXXXX
--------------------------------------------------
Xxxxx X. Xxxxxx, Director
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