EXHIBIT: (B)
EIGHTH AMENDMENT TO OPERATIVE AGREEMENTS
This Eighth Amendment to Operative Agreements dated effective as of May
30, 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, 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 and March 31, 2001; (ii) Section 6.02
(Debt Service Coverage Ratio) of the Guaranty Agreement for the periods ended
September 30, 2000, December 31, 2000 and March 31, 2001; and (iii) Section 6.03
(Minimum Net Worth) of the Guaranty Agreement for the period ended December 31,
2000 and March 31, 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.
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.
EIGHTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 1
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 Amended Definition. The following definition appearing in
Appendix A to the Participation Agreement is hereby amended to read in their
entirety as follows:
"Applicable Percentage" shall mean 3.00%.
Section 2.2 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: "Eighth Amendment to Operative Agreements"
means the Eighth Amendment to Operative Agreements dated as of May 30, 2001,
among certain parties to the Participation Agreement, Xxxxx Fargo and Bank One.
Section 2.3 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 Eighth 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 2.4 Resulting Interest Rates. For the avoidance of doubt, from
and after the date of the Eighth 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 based on such interest calculated at
the ABR plus the Applicable Percentage and no such interest, yield, rent, etc.
will be based upon the "LIBOR Rate" or "Eurodollar 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
EIGHTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 2
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 "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 July 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 the July 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 agrees
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
EIGHTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 3
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 and Holder 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, 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;
EIGHTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 4
(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; and
(e) 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 either Lender or Holder shall affect the representations and
warranties or the right of either Lender or Holder 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 and Holder.
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.
EIGHTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 5
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, the Lenders and Holder 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
Lender's and Holder's 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 "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, 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 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 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, the Holder, 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, the Holder, and/or the Agent pursuant to this Agreement
and shall not be construed as an admission of liability by the Lenders, the
Holder, 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.
EIGHTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 6
Section 5.12 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.
EIGHTH 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., ULTRAK, INC., as the Guarantor
a Texas limited 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
-------------------------
XXXXX FARGO BANK TEXAS,
By: /s/ XXXXX X. XXXXXX NATIONAL ASSOCIATION, as a Lender
---------------------------- and as the Agent
Name: /s/ Xxxxx X. Xxxxxx
--------------------------
Title: Senior Vice-President and
Chief Financial Officer
-------------------------
XXXXX FARGO BANK NORTHWEST, By: /s/ XXX XXXXXXXXXXXX
NATIONAL ASSOCIATION ----------------------------
(formerly First Security Bank, National Name: Xxx Xxxxxxxxxxxx
Association), not individually, except --------------------------
as expressly stated herein, but Title: Vice-President
solely as the Owner Trustee under -------------------------
the Ultrak Trust 1996-1
BANK ONE, TEXAS, N.A., as a Lender
and as the Holder
By: /s/ XXX XXXXXXXXXXXX
----------------------------
Name: Xxx Xxxxxxxxxxxx
--------------------------
Title: Vice-President By: /s/ XXXXX X. XXXXX
------------------------- ----------------------------
Name: Xxxxx X. Xxxxx
--------------------------
Title: First Vice-President
-------------------------
EIGHTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 8
RATIFICATION
Each of the undersigned parties hereby expressly (i) acknowledges the terms of
the foregoing Eighth 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:
----------------------------------
EIGHTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 9
MONITOR DYNAMICS, INC.
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice-President and Chief
Financial Officer
---------------------------------
Date:
----------------------------------
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
---------------------------------
EIGHTH AMENDMENT TO OPERATIVE AGREEMENTS, Page 10
