AMENDMENT AGREEMENT between Conrent Invest S.A.acting on behalf of its compartment “Safety 2” as Lender and Track Group, Inc. as Borrower relating tothe facility agreement dated 30 December 2013 as amended and restated on 30 June 2015 and on 19 July...
Exhibit
10.1
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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 and on 19 July 2018
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24
February 2019
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TABLE OF CONTENTS
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Section
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Page
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9.
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10.
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11.
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12.
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THIS AMENDMENT AGREEMENT is dated 24 February 2019 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 283, Route d’Xxxxx, X-0000
Xxxxxxxx, 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.
(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 further amend the Amended and Restated Facility
Agreement.
(H)
As a consequence
thereof, the Parties entered into an amendment to the Amended and
Restated Facility Agreement effective 19 July 2018 (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 and the amendments
effective as of 19 July 2018, (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 April
2019.
(I)
(a) As of 31
January 2019, accrued and unpaid interest on the Outstanding
Principal Amount equals USD 7,404,088.88 (seven million, four
hundred four thousand, eighty-eight U.S. Dollars and eighty-eight
cents) (the “Unpaid
Interest”) and (b) the Borrower was exploring
alternatives to refinance the Outstanding Principal Amount, which
is maturing on 1 April 2019 under the terms of the Facility
Agreement.
(J)
Following request
from the Borrower, the Lender convened its existing Noteholders to
Noteholders meetings on 16 January 2019 for the purpose of, inter
alia, considering and, if thought fit, approving the request for a
third extension and the subsequent extension of the maturity of the
debt securities issued by the Lender to the Noteholders from 1
April 2019 to 1 April 2020 (the “Third Extension”) or any
alternative restructuring solution that the Lender and the
Noteholders present at such meetings may discuss and deem fit (the
“Third Extension
Meetings”).
(K)
After having
received the consent from its then existing Noteholders, the Lender
agreed to further amend the Facility Agreement.
(L)
On 28 November
2018, the Borrower paid to the Lender an amount of EUR 30,912.50
(thirty thousand nine hundred and twelve Euro and fifty cent) as
part of the agreed upon budget for costs and expenses incurred by
the Lender in connection with the Third Extension (the
“Third Extension
Budget”).
IT IS AGREED AS FOLLOWS:
1.
RECITALS, DEFINITIONS AND INTERPRETATION
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 amendment
agreement.
“Effective Date” means 24 February
2019.
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.
AMENDMENTS TO THE FACILITY AGREEMENT
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. The Third 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 Third Extension.
2.2
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 the Maturity
Date.”
2.3
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
April 2020 and (ii) the date the Outstanding Principal Amount is
fully repaid by the Borrower pursuant to Section 3.7 (Change of Control).”
2.4
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.
2.5
Any references in
the Facility Agreement to “this Agreement” shall be
read and construed as, and refer to, the Facility Agreement as
amended by the Amendment Agreement and this Agreement.
2.6
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.
3.
REPRESENTATIONS AND WARRANTIES
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).
4.
The
Third Extension and the Waiver 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.
5.
FEES
On or
within 2 (two) Business Days after the execution of this Agreement,
the Borrower shall pay to the Lender a final amount of EUR
51,437.50 (fifty-one thousand, four hundred and thirty-seven Euro
and fifty cent) constituting the remainder of the Third Extension
Budget for all costs and expenses incurred by the Lender in
connection with the Third Extension.
6.
WAIVER
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 due to the failure by the
Borrower to pay accrued Unpaid Interest, 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.
7.
PARTIAL INVALIDITY
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.
8.
COUNTERPARTS
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.
9.
NOTICES
9.1
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.
9.2
All notices from
the Lender to the Borrower shall be validly made to the last known
address of the Borrower.
9.3
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.
9.4
The addresses of
each Party for all notices under or in connection with this
Agreement and the Facility Agreement are:
In
relation to the Lender:
Conrent Invest S.A.
acting
on behalf of its compartment “Safety 2”
Address: 283, Route
d’Xxxxx, X-0000 Xxxxxxxx, Xxxxx-Xxxxx xx
Xxxxxxxxxx
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.
10.
GOVERNING LAW
Provisions of
Section 13 (Governing Law)
of the Facility Agreement shall apply mutatis mutandis to this
Agreement.
11.
JURISDICTION AND DISPUTE RESOLUTION
Provisions of
Section 14 (Jurisdiction and
Dispute Resolution) of the Facility Agreement shall apply
mutatis mutandis to this
Agreement.
12.
SERVICE OF PROCESS
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]
[Signature page of the 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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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 Xxxxxxx
By:
Xxxxx Xxxxxxx
Title:
CEO
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/s/ Xxxxx Xxxx
By:
Xxxxx Xxxx
Title:
CFO
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