FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT
FIRST
AMENDMENT TO CREDIT AND SECURITY AGREEMENT
THIS
FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this "Amendment")
dated
as of December 18, 2007, is entered into by and among ISECURETRAC CORP., a
Delaware corporation ("Debtor")
and
CRESTPARK LP, INC., a Delaware corporation ("Secured Party").
RECITALS:
WHEREAS,
Debtor and Secured Party are parties to that certain Credit and Security
Agreement dated
as
of October 29, 2007 (such agreement, together with all amendments, modifications
and restatements, and as further amended, modified and restated by this
Amendment, the "Agreement").
WHEREAS,
the parties hereto desire to amend the Agreement in certain respects as
hereinafter set forth, in order to increase the amount loaned to Debtor by
$3,300,000.00.
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION
1. DEFINED
TERMS.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings set forth in the Agreement.
SECTION
2. AMENDMENTS
TO AGREEMENT.
2.1 Amendment
to Introduction.
The
second full paragraph of the introduction to the Agreement is hereby amended
in
its entirety to read as follows:
Debtor
is
executing an Amended and Restated Promissory Note in the original principal
amount of $11,877,474.88 in favor of the Secured Party. As security for the
indebtedness represented thereunder, Debtor hereby agrees with Secured Party
as
follows:
2.2 Amendment
to Section 1(i).
Section
1(i) is hereby amended in its entirety to read as follows:
"Note"
means
that certain Amended and Restated Promissory Note executed by Debtor in favor
of
Secured Party in the original principal amount of $11,877,474.88, as it may
be
amended, restated or modified.
SECTION
3. REPRESENTATIONS
AND WARRANTIES.
Debtor
represents and warrants that, as of the date hereof:
3.1 Authorization;
No Conflict.
The
execution and delivery by Debtor of this Amendment and the performance by Debtor
of its obligations under the Agreement have been duly authorized by all
necessary corporate or equivalent action, do not require any filing or
registration with or approval or consent of any governmental agency or
authority, do not and will not conflict with, result in any violation of, or
constitute any default under any provision of the organizational documents
of
Debtor or any material agreement or other document binding upon or applicable
to
Debtor (or
any
of its respective properties) or any material law or governmental regulation
or
court decree or order applicable to Debtor, and will not result in or require
the creation or imposition of any lien in any of the properties of
Debtor pursuant
to the provisions of any agreement binding upon or applicable to
Debtor.
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3.2 Due
Execution; Enforceability.
This
Amendment has been duly executed and delivered by Debtor and, together with
the
Agreement, is a legal, valid and binding obligation of Debtor, enforceable
in
accordance with its terms subject, as to enforcement only, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of the rights of creditors generally and to general principles
of
equity (regardless of whether enforcement is sought in equity or at
law).
3.3 No
Default. No
event
has occurred and is continuing which constitutes an Event of
Default.
3.4 Representations
and Warranties.
All of
the representations and warranties of Debtor contained in the Agreement and
the
other Loan Documents are true and correct in all material respects.
SECTION
4. RATIFICATION.
The
terms and provisions set forth in this Amendment shall modify and supersede
all
inconsistent terms and provisions set forth in the Agreement and, except as
expressly modified and superseded by this Amendment, the terms and provisions
of
the Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. The Debtor agrees that the Agreement, as
amended hereby, and the other Loan Documents to which it is a party or subject
shall continue to be legal, valid, binding and enforceable in accordance with
their respective terms.
SECTION
5. CONDITIONS
PRECEDENT.
This
Amendment shall become effective as of the date hereof upon satisfaction of
all
of the following conditions:
5.1 Amendment
and Note.
Receipt
by Secured Party of counterpart originals of this Amendment and an amended
and
restated promissory note, duly executed by Debtor and Secured Party, as
applicable.
5.2 Resolutions.
Receipt
by Secured Party of resolutions from Debtor which authorize the execution,
delivery and performance by Debtor of this Amendment and any other documents
to
be executed in connection herewith to which Debtor is a party.
5.3 Incumbency
Certificate.
Receipt
by Secured Party of a certificate of incumbency certified by an authorized
officer of Debtor certifying the names of each officer of Debtor authorized
to
sign this Amendment and each of the other documents to which Debtor is or is
to
be a party, together with specimen signatures of such officers.
5.4 Representations
and Warranties.
The
representations and warranties contained in Section
3
of this
Amendment shall be true and correct in all material respects.
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5.5 Other
Documentation.
Receipt
by Secured Party of such other documents, certificates and instruments, in
form
and substance satisfactory to Secured Party and its counsel, as Secured Party
shall require.
SECTION
6. MISCELLANEOUS.
6.1 Expenses.
Debtor
agrees to pay, and save Secured Party harmless from all liability for, any
stamp
or other taxes which may be payable in connection with the execution or delivery
of this Amendment, the borrowings under the Agreement, and the execution and
delivery of any instruments or documents provided for herein or delivered or
to
be delivered hereunder or in connection herewith. All obligations provided
in
this Section 6.1
shall
survive any termination of this Amendment and the Agreement.
6.2 No
Waiver.
The
execution and delivery of this Amendment shall not constitute a waiver of any
disclosed or undisclosed default in existence as of the date
hereof.
6.3 Captions.
Section
captions used in this Amendment are for convenience only and shall not affect
the construction of this Amendment.
6.4 Governing
Law.
THIS
AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE
OF TEXAS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. Wherever possible
each
provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable laws, but if any provision of this
Amendment shall be prohibited by or invalid under such laws, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this
Amendment.
6.5 Counterparts.
This
Amendment may be executed in any number of counterparts, and by the parties
hereto on the same or separate counterparts, and each such counterpart, when
executed and delivered (including by facsimile machine, telecopier, or
electronic mail), shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Amendment.
6.6 Reference
to Agreement.
On and
after the date hereof, each reference in the Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import, and each reference
to
the Agreement in any Note and in any other agreement, document or other
instrument executed and delivered pursuant to the Agreement, shall mean and
be a
reference to the Agreement.
6.7 Loan
Document.
This
Amendment is a Loan Document and is subject to all provisions of the Agreement
applicable to Loan Documents, all of which are incorporated in this Amendment
by
reference the same as if set forth in this Amendment verbatim.
6.8 Severability.
Any
provisions 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 provisions so held
to
be invalid or unenforceable.
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6.9 Successors
and Assigns.
This
Amendment shall be binding upon the parties hereto and their respective
successors and assigns, and shall inure to the sole benefit of the parties
hereto and the successors and assigns of Secured Party. Notwithstanding the
foregoing, Debtor shall not assign its rights or duties hereunder without the
consent of Secured Party.
6.10 Release.
Debtor
hereby unconditionally and irrevocably remises, acquits, and fully and forever
releases and discharges Secured Party and all respective affiliates and
subsidiaries of Secured Party, their respective officers, servants, employees,
agents, attorneys, principals, directors and shareholders, and their respective
heirs, legal representatives, successors and assigns (collectively, the
"Released
Secured Parties")
from
any and all claims, demands, causes of action, obligations, remedies, suits,
damages and liabilities (collectively, the "Debtor
Claims")
of any
nature whatsoever, whether now known, suspected or claimed, whether arising
under common law, in equity or under statute, which Debtor ever had or now
has
against the Released Secured Parties which may have arisen at any time on or
prior to the date of this Amendment and which were in any manner related to
any
of the Loan Documents or the enforcement or attempted enforcement by Secured
Party of rights, remedies or recourses related thereto. Debtor covenants and
agrees never to commence, voluntarily aid in any way, prosecute or cause to
be
commenced or prosecuted against any of the Released Secured Parties any action
or other proceeding based upon any of the Debtor Claims which may have arisen
at
any time on or prior to the date hereof and were in any manner related to any
of
the Loan Documents. The agreements of Debtor set forth in this Section 6.10 shall
survive termination of this Amendment.
6.11 ENTIRE
AGREEMENT. THE
AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder
of Page Left Intentionally Blank - Signature Page Follows]
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Delivered
as of the day and year first above written.
DEBTOR:
|
a
Delaware corporation
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| By: | /s/ Xxxxx X. Xxxxxx | |
|
Name:
|
Xxxxx X. Xxxxxx | |
| Title: | CEO | |
SECURED
PARTY:
|
CRESTPARK
LP, INC,
as
Secured Party
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| By: | /s/ Xxxxxxx Xxxxxxx | |
|
Name:
|
Xxxxxxx Xxxxxxx | |
| Title: | Senior Vice President | |
