Contract
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between
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Conrent Invest S.A.acting on behalf of its compartment
“Safety 2”
as
Lender
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and
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as
Borrower
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relating
tothe facility agreement dated 30 December 2013 as amended and
restated on 30 June 2015, on 19 July 2018, on 24 February 2019 and
on 10 January 2020
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21
December 2020
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TABLE
OF CONTENTS
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Section
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Page
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1
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Recitals,
Definitions and Interpretation
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3
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2
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Amendments
to the Facility Agreement
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3
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3
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Representations
and Warranties
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6
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4
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Conditions
Precedent
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6
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5
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Fees
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6
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6
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Waiver
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6
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7
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Further
Commitment of the Lender
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7
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8
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Partial
Invalidity
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7
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9
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Counterparts
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7
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10
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Notices
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7
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11
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Governing
Law
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8
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12
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Jurisdiction
and Dispute Resolution
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8
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13
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Service
of Process
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8
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Schedule
1 Assessment Letter
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10
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THIS FOURTH AMENDMENT AGREEMENT is dated 21 December and is
made
BETWEEN
(1)
Conrent Invest S.A., a public limited
liability company (société anonyme),
incorporated under the laws of the Grand Duchy of Luxembourg and
having its registered office at 0, Xxx xx Xxxxxxx, X-0000
Xxxxxxxxx, Xxxxx Xxxxx of Luxembourg, registered with the
Luxembourg trade and companies register under number B 170.360 (the
“Company”),
acting on behalf of its Compartment “Safety2”, (the
“Lender”);
AND
(2)
Track Group, Inc. (formerly known as SecureAlert, Inc.), a
Delaware corporation, having its registered office at business
office at 000 Xxxx 0xx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000, Xxxxxx Xxxxxx of America (the “Borrower”).
Each of
the Finance Party and the Borrower will be individually referred to
hereinafter as a “Party” and collectively as the
“Parties”.
WHEREAS:
(B)
By a transfer
certificate dated 10 January 2014, the Original Lender transferred
by novation all its rights and obligations under the Original
Agreement to the Lender.
(C)
By a letter dated
10 June 2015, the Borrower requested the Lender, inter alia, (i) to
increase the amount of the Facility granted under the Original
Agreement from USD 25,000,000 (twenty-five million U.S. Dollars) to
USD 30,400,000 (thirty million four hundred thousand U.S. Dollars)
and (ii) to extend the maturity of the Original Agreement through
31 July 2018.
(D)
The Lender has
issued debt securities to investors (the “Noteholders”) in order to finance
the loans provided under the Original Agreement (the
“Notes”).
(E)
After having
received the written consent from its then existing Noteholders,
the Lender agreed to amend the Original Agreement and have such
Original Agreement amended and restated.
(F)
As a consequence
thereof, the Parties entered into an amended and restated facility
agreement effective 30 June 2015 (Original Agreement, as amended
and restated, the “Amended
and Restated Facility Agreement”). As of the date of
the Facility Agreement, and due to the amendments and restatements
effective as of 30 June 2015, (i) the aggregate amount of the
Facility was USD 30,400,000 (thirty million four hundred thousand
U.S. Dollars) and (ii) the maturity of the Facility was 31 July
2018.
(G)
After having
received the consent from its then existing Noteholders, the Lender
agreed to proceed on several amendments of the Amended and Restated
Facility Agreement.
-1-
(H)
As a consequence
thereof, the Parties entered into (i) an amendment to the Amended
and Restated Facility Agreement effective 19 July 2018, (ii) a
second amendment to the Amended and Restated Facility Agreement
effective 24 February 2019 and (iii) a third amendment to the
Amended and Restated Facility Agreement effective 10 January 2020
(Amended and Restated Facility Agreement, as amended, the
“Facility
Agreement”). As of the date of the Facility Agreement,
and due to the amendments and restatements effective as of 30 June
2015, the amendments effective as of 19 July 2018, the amendments
effective as of 24 February 2019 and the amendments effective as of
10 January 2020, (i) the aggregate amount of the Facility was USD
30,400,000 (thirty million four hundred thousand U.S. Dollars) and
(ii) the maturity of the Facility was 1 July 2021.
(I)
The Borrower was
exploring alternatives to refinance the Outstanding Principal
Amount, which is maturing on 1 July 2021 under the terms of the
Facility Agreement, pursuant to which the Borrower has requested
the Lender, inter alia, (i) to extend the maturity date of the
Original Agreement through 31 July 2024 and (ii) to amend the fixed
interest rate applicable to the Outstanding Principal Amount from
8% (eight percent) to 4% (four percent).
(J)
Following request
from the Borrower, the Lender convened its existing Noteholders to
Noteholders’ meetings on 25 November 2020 for the purpose of,
inter alia, considering and, if thought fit, approving the request
for a fifth extension and the subsequent extension of the maturity
of the debt securities issued by the Lender to the Noteholders from
1 July 2021 to 1 July 2024 (the “Fifth Extension”) or any
alternative restructuring solution that the Lender and the
Noteholders present at such meetings may discuss and deem fit (the
“Fifth Extension
Meetings”).
(K)
The Fifth Extension
Meetings approved and authorized, among others, the Fifth
Extension, including the capitalization of the accrued interest
until a date no later than 1 July 2021, the subsequent equivalent
restructuring of the principal amount of the Notes, the extension
of the maturity date of the Notes and amendment of the applicable
interest rates under the Notes (the “Notes’ Restructuring”).
After having received the consent from its then existing
Noteholders, and the agreement of the Borrower, the Lender agreed
to further amend the Facility Agreement.
(L)
On 25 November
2020, the Borrower paid to the Lender an amount of
EUR 75,000.00 (seventy-five thousand euros) and agreed to pay
EUR 225,000 (two hundred twenty-five thousand euros), in the
amounts, on the dates, and as more specifically set forth in
Section 5, below, as part of the agreed upon budget for costs
and expenses incurred by the Lender in connection with the Fifth
Extension (the “Fifth
Extension Budget”).
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IT IS AGREED AS FOLLOWS:
1.1
Recitals (A)
through (M) are an integral part hereof.
1.2
Definitions
Unless
otherwise defined herein or where the context requires otherwise,
words or expressions defined in the Facility Agreement shall have
the same meanings in this Agreement (including in the preamble and
recitals hereto) and this construction shall survive the
termination of this Agreement and of the Facility
Agreement.
In
addition the following definitions will apply:
“Agreement” means this fourth
amendment agreement.
“Effective Date” means the date
specified in the Assessment Letter (as defined below), to be
received by the Borrower upon the earlier of (a) 1 July 2021 and
(b) the date when the Notes’ Restructuring becomes effective
as indicated in the assessment letter substantially in the form as
set out under Schedule 1.
1.3
Interpretation
(a)
Section headings
are inserted for convenience of reference only and shall be ignored
in the construction of this Agreement.
(b)
Words importing the
singular shall include the plural and vice-versa.
(c)
References to a
document in this Agreement are references to such document as it
may be amended, novated, supplemented, extended or restated from
time to time.
(d)
References to a
person in this Agreement include its successors, transferees,
assignees or novated parties.
2.1
The Parties hereby
agree to extend the Facility until the Maturity Date to enable the
Borrower to repay the Outstanding Principal Amount under the
Facility, to reduce the applicable Interest Rate as well as to
amend the applicable Interest Payment Date. The Fifth Extension
does not affect the terms of the Facility Agreement and this
Agreement only reflects the understanding of the Parties regarding
the specific terms applying to the Fifth Extension.
2.2
With effect as of
the Effective Date, the definition of “Interest Rate”
under the Facility Agreement shall read as follows:
““Interest
Rate” means 4% (four per cent) per
annum.”
2.3
With effect as of
the Effective Date, the definition of “Interest Payment
Date” under the Facility Agreement shall read as
follows:
““Interest
Payment Date” means each of the following dates: (i) 1
July 2022, (ii) 1 July 2023 and (iii) the Maturity
Date.”
-3-
2.4
With effect as of
the Effective Date, the definition of “Maturity Date”
under the Facility Agreement shall read as follows:
““Maturity
Date” means the earlier of the following dates: (i) 1
July 2024 and (ii) the date the Outstanding Principal Amount is
fully repaid by the Borrower pursuant to Section 3.7 (Change of Control).”
2.5
With effect as of
the Effective Date, the definition of “Outstanding Principal
Amount” under the Facility Agreement shall read as
follows:
““Outstanding
Principal Amount” means USD 30,400,000 (thirty million
four hundred thousand U.S. Dollars) plus all interest accrued at
the previous interest rate of 8% (eight per cent) from the date of
the last interest payment made by the Borrower on 31 January 2016
until the date specified in an assessment letter (the
“First Interest Accrual Date”) notified
by the Lender to the Borrower and countersigned by the Borrower for
agreement (the “Assessment
Letter”). The Outstanding Principal Amount shall be
accordingly calculated by the Lender and notified to the Borrower
in accordance with the Assessment Letter, at which such time the
Assessment Letter shall be incorporated herein by reference and
made a part hereof.”
The
Assessment Letter shall be substantially in the form as set out
under Schedule 1.
2.6
With effect as to
the Effective Date, Section 3.2 (Interest) first paragraph of the
Facility Agreement shall be amended to read as
follows:
“Interest on
the Outstanding Principal Amount shall accrue daily from the date
of drawdown of the Term Loan at the Interest Rate and shall be
calculated by the Lender on the basis of a year of 360 days for the
actual number of days elapsed, with respect to the first interest
payment, from the First Interest Accrual Date to the following
Interest Payment Date and, with respect to any further interest
payment, from an Interest Payment Date to the following Interest
Payment Date, and is payable in arrears on each Interest Payment
Date to the Bank Account. The Lender shall send to the Borrower the
detailed calculation of the payable accrued Interest at least ten
(10) Business Days prior to each Interest Payment
Date.”
2.7
With effect as of
the Effective Date, Section 3.7 “Change of Control”
shall be amended to read as follows:
“3.7 Change
of Control
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If any
person acquires at least 51% of the voting rights or the power to
direct or cause the direction of the management and policies of the
Borrower, whether through the ownership of voting securities, or by
contract, or otherwise (any
such event being referred to as a “Change of Control”):
(a)
the board of
directors of the Borrower shall promptly notify the Lender upon
becoming aware of that event;
(b)
the Lender will
immediately cancel the Facility and declare the Outstanding
Principal Amount, together with any accrued interest immediately
due and payable, whereupon the Outstanding Principal Amount,
together with the accrued interest, will become immediately due and
payable;
(c)
the Borrower
undertakes to provide in any contract for a Change of Control that
the acquiring person (i) pay or cause the Borrower to pay to the
Lender all amounts referred to in Section 3.7(b) above (ii) will
agree to terminate the Facility upon payment of all amounts
referred to in Section 3.7(b), thereby releasing the parties
thereto from any further obligations under this Agreement and (iii)
fully cooperate with the Borrower and the Lender with regards to
the settlement of the Outstanding Principal Amount, together with
accrued interest, under this Agreement. Any such payments shall
occur promptly and at the latest within 3 (three) Business Days as
from the occurrence of the Change of Control; and
(d)
In this respect,
promptly upon receipt of notice of the Change of Control in
accordance with Section 3.7(a) above, the Lender will provide the
Borrower with a statement of the Outstanding Principal Amount,
together with accrued interest, and all other amounts accrued under
the Facility and any Finance Documents which remain due to it and
the bank account into which the buyer(s) shall direct the
payment.
This
Section 3.7 does not apply to ETS Limited and ADS Securities LLC
(together, the “Controlling
Shareholders”), so long as the Controlling
Shareholders either alone or collectively, directly or indirectly,
own less than 75% of the voting rights of the
Borrower.”
2.8
The Parties hereby
agree and the Borrower expressly accepts that except for any
amendment to the Facility Agreement made pursuant to this
Agreement, all terms and conditions of the Facility Agreement will
continue in full force and effect in accordance with its provisions
on the date of this Agreement.
2.9
Any references in
the Facility Agreement to “this Agreement” shall be
read and construed as, and refer to, the Facility Agreement as
amended by this Agreement.
2.10
The agreement and
acceptance to the amendments in the Facility Agreement by the
Lender is without prejudice to, and
leaves unaffected, the rights of the Lender under the Facility
Agreement other than as directly related to this
Agreement.
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3.1
The Borrower hereby
represents and warrants to the Lender that on the date of this
Agreement that all necessary corporate action has been taken to
authorize the entry into, execution and delivery of this Agreement,
and the performance of its obligations thereunder.
3.2
The Borrower hereby
represents and warrants to the Lender that the representations and
warranties under Section 5 (Representations and Warranties) of the
Facility Agreement are true and correct in all material respects as
if made as of the Effective Date (except to the extent that any
such representation and warranty expressly speaks as of an earlier
date, in which case such representation and warranty shall be true
and correct in all material respects as of such earlier
date).
The
Fifth Extension and the Waiver (as defined below) are subject to
the satisfaction or, at the Lender’s discretion, the waiver
(in whole or in part) of the following conditions
precedent:
(a)
this Agreement
shall have been duly authorized, executed and delivered by the
Borrower and shall be in full force and effect; and
(b)
the Borrower shall
have delivered to the Lender at the latest on the Effective Date
the Borrower’s board of directors’ resolution(s)
approving the entry into, execution and performance by the Borrower
of its obligations under this Agreement.
The
Borrower shall pay to the Lender EUR 75,000.00 (seventy-five
thousand euros) within 5 (five) Business days of 1 January 2021, 1
January 2022, and 1 January 2023, such payments constituting the
remainder of the Fifth Extension Budget for all costs and expenses
incurred by the Lender in connection with the Fifth Extension.
Notwithstanding the foregoing, in the event that the Borrower
satisfies its obligations under the Facility Agreement prior to the
Maturity Date, including the repayment of the Outstanding Principal
Amount and accrued unpaid interest pursuant to Section 3.7
(Change of Control), the
Borrower shall not be obligated to make any of the above-referenced
payments to the Lender for which the date of such payment is due
has not elapsed.
As of
the Effective Date, and subject to the fulfilment of the
conditions’ precedent set out under Section 4 above, the
Lender waives any and all breaches or defaults under the Facility
Agreement (the “Waiver”). The Waiver shall prevent
the Lender from accelerating the Facility and no Default Interest
shall be payable so long as all amounts due to the Lender under the
Facility Agreement, as amended, including the Outstanding Principal
Amount and Unpaid Interest, are paid on or before the Maturity
Date. The Waiver shall not have any force and effect if all amounts
then due to the Lender under the Facility Agreement, as amended,
are not paid on the Maturity Date. The Waiver shall not affect any
of the other Lender’s rights and claims under the Facility
Agreement.
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In the
event that the Borrower is contemplating a transaction that, if
consummated, would constitute a Change of Control, then upon notice
provided to the Lender by the Borrower, the Borrower shall be able
to request the Lender to convene a Noteholders’ meeting at
fees, costs and expenses of the Borrower, to decide whether to
partially defer payment of the Outstanding Principal Amount and
accrued interests. The Lender will use best efforts to promptly
convene such Noteholders’ meeting and inform the Borrower of
the results thereof.
If at
any time, any one or more of the provisions hereof is or becomes
invalid, illegal or unenforceable in any respect under the law of
any relevant jurisdiction, such provision shall as to such
jurisdiction, be ineffective to the extent necessary without
affecting or impairing the validity, legality and enforceability of
the remaining provisions hereof or of such provisions in any other
jurisdiction. The invalid or unenforceable provision shall be
deemed replaced by such valid, legal or enforceable provision which
comes as close as possible to the original intent of the parties to
this Agreement and the invalid, illegal or unenforceable provision.
The aforesaid shall apply mutatis mutandis to any gap in this
Agreement.
This
Agreement may be executed in any number of counterparts and by the
different Parties on separate counterparts each of which, when so
executed and delivered, shall be an original but all the
counterparts shall together constitute one and the same
instrument.
10.1
All notices or
other communications under or in connection with this Agreement and
the Facility Agreement shall be given in writing, by electronic
mail or by registered letter.
10.2
All notices from
the Lender to the Borrower shall be validly made to the last known
address of the Borrower.
10.3
A notice given in
accordance with the above but received on a day that is not a
Business Day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that
place.
10.4
The addresses of
each Party for all notices under or in connection with this
Agreement and the Facility Agreement are:
-7-
In
relation to the Lender:
Conrent Invest S.A.
acting
on behalf of its compartment “Safety 2”
Address:
0, Xxx xx Xxxxxxx,
X-0000 Xxxxxxxxx, Xxxxx Xxxxx of Luxembourg
Attention
to:Simplex SarL, the Sole director of the Company
E-mail:
xxxxx.xxxxxxx@xxxxxxx.xx
In
relation to the Borrower:
Address:
000 Xxxx 0xx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of
America
Attention to:Xxxxx
Xxxx, CFO
E-mail:
xxxxx.xxxx@xxxxxxxx.xxx
or any
other address notified by a Party for this purpose to the other
Party by not less than five Business Days’ prior
notice.
Provisions of
Section 13 (Governing Law)
of the Facility Agreement shall apply mutatis mutandis to this
Agreement.
Provisions of
Section 14 (Jurisdiction and
Dispute Resolution) of the Facility Agreement shall apply
mutatis mutandis to this
Agreement.
Provisions of
Section 15 (Service of
Process) of the Facility Agreement shall apply mutatis mutandis to this
Agreement.
This Agreement has been entered into in two (2) originals, each
Party acknowledging receipt of one, on the date stated at the
beginning by:
[Remainder of page intentionally left blank; signature page to
follow]
-8-
[Signature page of the fourth amendment agreement]
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Conrent Invest S.A.
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acting
on behalf of its Compartment “Safety2”
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as Lender
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/s/
Xxxxxxxx Xxxxxxxx
By:
Simplex S.à x.X.
Title:
Sole director of the Company
Represented
by: Xx. Xxxxxxxx Xxxxxxxx Xxxxxxx
Title:
Sole manager of Simplex S.à x.X.
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As Borrower
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/s/
Xxxxx Xxxx
By:
Xxxxx Xxxx
Title:
CFO
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By:
Title:
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-9-
Assessment
Letter
From:
Conrent Invest S.A.
0, Xxx
xx Xxxxxxx
X-0000
Xxxxxxxxx
Xxxxx
Xxxxx of Luxembourg
(the
“Issuer”)
000
Xxxx 0xx Xxxxxx
Xxxxx
000, Xxxxxxxxxx
Xxxxxxxx
00000
Xxxxxx
Xxxxxx of America
(the
“Borrower”)
Date:
_____________
RE: Assessment Letter on the Outstanding Principal
Amount
Dear
Madam,
Dear
Sir,
We
refer to the fourth amendment agreement dated 21 December 2020
entered into by the Issuer and the Borrower (the
“Fourth Amendment
Agreement”) relating to the facility agreement dated
30 December 2013 as amended and restated on 30 June 2015 and as
amended on 19 July 2018, on 24 February 2019, on 10 January 2020
and on the date of the Fourth Amendment Agreement (the
“Facility
Agreement”).
We
hereby assess that the Outstanding Principal Amount (as defined in
the Facility Agreement Agreement) amounts to USD
_________________________ (__________________________ U.S. Dollars)
as of the ____________________ (the “First Interest Accrual
Date”).
This
letter may be executed in any number of counterparts. This has the
same effect as if the signatures on the counterparts were on a
single copy of this letter.
Please
confirm your agreement with the above by signing where indicated
below and returning to the Issuer.
Yours
faithfully
For and
on behalf of
-10-
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Conrent Invest S.A.
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acting
on behalf of its Compartment “Safety2”
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as Issuer
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By:
Simplex S.à x.X.
Title:
Sole director of the Company
Represented
by: Xx. Xxxxxxxx Xxxxxxxx Xxxxxxx
Title:
Sole manager of Simplex S.à x.X.
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-11-
We
agree to the terms set out in the above letter.
For and
on behalf of
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As Borrower
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By:
Title:
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By:
Title:
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-12-
