Utah
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000-23153
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87-0543981
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(State or other jurisdiction of incorporation)
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(Commission File No.)
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(IRS Employer Identification No.)
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405 South Main Street, Suite 700, Salt Lake City, UT 84111
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(Address of principal executive offices)
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(801) 451-6141
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(Registrant’s Telephone Number)
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Not Applicable
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(Former name or address, if changed since last report)
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¨
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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¨
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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¨
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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¨
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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TRACK GROUP, INC.
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Date: July 15, 2015
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By:
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/s/ John R. Merrill
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John R. Merrill
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Chief Financial Officer
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Exhibit No.
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Description
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10.1
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Amended and Restated Facility Agreement, dated June 30, 2015, by and between Track Group, Inc. and Conrent Invest S.A, acting on behalf of its compartment “Safety 2”
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99.1
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Press release, dated July 15, 2015
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(1)
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Conrent Invest S.A.,
a private company with limited liability incorporated under the laws of the Grand Duchy of Luxembourg as a securitisation company within the meaning of the law of 22 March 2004 on securitisation, having its registered office at 19, rue de Bitbourg, L-1273 Luxembourg and registered with the Luxembourg trande and companies register under number B 170.360 (the “
Lender
”);
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(2)
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Track Group, Inc. (formerly known as SecureAlert, Inc.),
a Utah corporation, having its principal business office at 405 S. Main Street, Suite 700, Utah 84111, United States of America (the “
Borrower
”);
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(A)
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Further to a facility agreement dated 30 December 2013 (the “
Original Agreement
”), Tretra House Pte. Ltd. (the “
Original Lender
”) made a term loan available to the Borrower for an aggregate amount of USD 25,000,000 (twenty-five million Dollars). As of the date of this Agreement, the aggregate amount of USD 25,000,000 (twenty-five million Dollars) has been made available to the Borrower by the Lender further to the Borrower’s request so that the Outstanding Principal Amount (as defined below) is of USD 25,000,000 (twenty-five million Dollars) as of the date of this Agreement.
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(B)
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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 (as defined above).
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(C)
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By a letter dated 10 June 2015, the Borrower has requested to the Lender inter alia (i) an increase of the amount of the loan initially granted from USD 25,000,000 (twenty-five million Dollars) to USD 30,400,000 (thirty million four hundred thousand Dollars) and (ii) an extension of its maturity through 31 July 2018.
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(D)
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After having received the written consent from its existing noteholders, the Lender agreed to amend the Original Agreement and have such Original Agreement amended and restated.
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(E)
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The purpose of this Agreement is to amend and restate the Original Agreement as further agreed herein.
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1.
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DEFINITIONS
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1.1.
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As used in this Agreement, the following terms shall have the respective meanings set forth below:
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(a)
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acquisition proceeds,
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(b)
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receipt of insurance or other settlement proceeds or requirements, and
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(c)
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disposals or other transactions that may occur in the ordinary course of business of the Borrower.
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1.2.
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In this Agreement any reference to any agreement, instrument or other document (howsoever named) is to such agreement, instrument or other document as it may be amended, supplemented or extended from time to time, whether before or after the date hereof.
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1.3.
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Article and section headings are for ease of reference only.
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1.4.
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Words importing the singular shall include the plural and vice versa.
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1.5.
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Any reference to any person shall be construed to include such person’s successors and assigns.
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2.
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THE FACILITY, TERM LOAN
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2.1.
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The Facility
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(a)
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the amount of USD 25,000,000 (twenty-five million U.S. Dollars) already funded by the Lender and received by the Borrower under the Original Agreement; and
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(b)
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the amount of USD 5,400,000 (five million four hundred thousand U.S. Dollars) to be funded no later than the Closing Date.
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2.2.
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Purpose of Facility
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2.3.
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Term Loan
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2.4.
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Ranking of Obligations
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3.
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PAYMENTS
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3.1.
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General
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3.2.
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Interest
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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 semi-annually by the Lender on the basis of a year of 360 days for the actual number of days elapsed, and is payable semi-annually 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.
In no event shall the interest rate applicable hereunder exceed the maximum rate of interest allowed by Law; any payment of interest or in the nature of interest in excess of such limitation shall be credited as a repayment of principal.
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day.
Notwithstanding any other provision in this Agreement, the parties hereto acknowledge and agree that unpaid and accrued interest for the period from 2 February 2015 through 30 June 2015 in the amount of USD 822,222 (eight hundred twenty-two thousand and two hundred twenty-two U.S. Dollars) is to be held back by the Lender as provided in Section 3.1 (
General
) above.
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3.3.
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Default Interest
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3.4.
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Principal
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3.5.
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Mandatory Prepayment
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3.6.
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Voluntary Prepayment
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(A)
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The Borrower shall be entitled to prepay, at any time, without penalty or prepayment fee, the Outstanding Principal Amount, (the "
Voluntary Prepayment
") and subject to delivering a Notice of Prepayment to the Lender not less than 30 days prior to the Prepayment Date (as defined below); provided that such prepayment shall be an integral multiple of USD 1,000,000 (one million Dollars).
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(B)
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The Notice of Prepayment shall specify the date where the proposed prepayment is to be made (the "
Prepayment Date
") and the principal amount of such prepayment (the "
Prepayment Amount
"). A Notice of Prepayment once delivered to the Lender is irrevocable and the Borrower shall be obligated to pay the Prepayment Amount to the Lender on the Prepayment Date, together with the additional amount set forth in Paragraph (C) below.
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(C)
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In addition to the Prepayment Amount, the Borrower shall pay to the Lender on the Prepayment Date the Interest accrued on the Prepayment Amount up to the Prepayment Date.
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(D)
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Any Prepayment Amounts repaid by the Borrower to the Lender may not be re-borrowed or re-loaned. Any Voluntary Prepayments will reduce permanently the aggregate maximum amount of the Facility.
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3.7.
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Taxes
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3.8.
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Failure or delay of less than thirty (30) calendar days from the date such compensation may be requested on the part of the Lender to demand compensation pursuant to this
Article 3
shall not constitute a waiver of the Lender's right to demand such compensation.
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4.
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CONDITIONS PRECEDENT
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5.
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REPRESENTATIONS AND WARRANTIES
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(1)
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The Borrower makes the representations and warranties set out in this
Article 5
on the date of this Agreement, the Closing Date and acknowledges that the Lender has entered into this Agreement in reliance on those representations and warranties.
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(a)
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The Borrower is a company, duly organized, validly existing and in good standing under the laws of its jurisdiction. The Borrower has the power to own its assets and carry on its business substantially as it is being conducted.
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(b)
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This Agreement constitutes or, when executed and delivered by the Borrower, will constitute, the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms.
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(c)
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The execution of this Agreement by the Borrower, the exercise of its rights and
performance of its obligations under the Agreement, do not and will not conflict with:
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-
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any law or regulation applicable to the Borrower;
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-
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the Borrower’s constitutional documents; or
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-
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any agreement or instrument to which the Borrower is a party or which is binding upon it or any of its assets.
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(d)
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The Borrower has the power to enter into, perform or deliver, and has taken all necessary action to authorize its entry into, performance and delivery of, this Agreement.
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(e)
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The choice of English law as the governing law of the Agreement and the submission to the jurisdiction of the English courts located in London, England will be recognized and enforced against the Borrower in its jurisdiction of incorporation. Nothing in this subparagraph (e) shall invalidate or supersede the obligation of the Parties to arbitrate any Dispute pursuant to the provisions of Section 14 below.
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(f)
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All authorizations required or desirable:
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-
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to enable the Borrower lawfully to enter into, exercise its rights and comply with its obligations under this Agreement; and
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-
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to make this Agreement admissible in evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect or will be obtained or effected on the first Closing Date.
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(g)
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The Borrower’s payment obligations under this Agreement rank at least
pari passu
with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
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(2)
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The Lender makes the representations and warranties set out in this Article 5 on the date of this Agreement, the Closing Date.
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(a)
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This Agreement and the other Finance Documents executed by the Lender have each been duly authorized, executed and delivered by the Lender and each constitutes the legally binding obligation of the Lender, enforceable against the Lender in accordance with its respective terms and the terms of this Agreement.
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(b)
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The Lender is a duly formed corporation, validly existing and in good standing under the laws of the Grand Duchy of Luxembourg, and is authorized and legally able to do business in England and the United States of America and to enter into this Agreement.
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(c)
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The Lender has full right, power and authority to execute this Agreement and all other documents executed by it on its own behalf and no consent of third parties is required.
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(d)
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The Lender has currently available and accessible all funds necessary to meet the Total Commitments under the terms of this Agreement.
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(e)
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No funds are currently being supplied by, originating from or passing through an “affiliate” of the Borrower as defined under the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder; in the event that funds should in the future be supplied by, originate from, be secured by or pass through an “affiliate”, the Lender will promptly notify Borrower of such “ affiliate event” (notwithstanding the forgoing Lender will use its best efforts to notify Borrower of such affiliate event within five (5) Business Days prior to the occurrence of any such affiliate event).
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6.
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EVENTS OF DEFAULT
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6.1.
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Subject to
Section 2.4
above, upon the occurrence and during the continuation of any Event of Default (as hereinafter defined), the Lender may:
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(a)
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cancel the Total Commitments, whereupon they shall immediately be cancelled;
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(b)
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by notice to the Borrower, declare the entire Facility or the Term Loan (together with all accrued and unpaid interest thereon) and other obligations, indebtedness and liabilities of the Borrower to the Lender arising under or in connection with this Agreement of whatever nature, whether contingent or absolute, matured or unmatured (the "
Obligations
") to be forthwith due and payable;
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(c)
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declare that all or part of the Term Loans be payable on demand, whereupon they shall immediately become payable on demand by the Lender; and/or
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(d)
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do all other things provided for by law or equity and under this Agreement to enforce and/or recover all or any Obligations,
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6.2.
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Each of the following shall be an "
Event of Default
" hereunder:
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(a)
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The Borrower shall fail to make any payment when due, of any principal, interest, fees or any other Obligations (whether at scheduled maturity, by acceleration or otherwise) for more than five Business Days after the date when due, unless its failure to pay is caused by an administrative or technical error.
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(b)
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Any representation or warranty made by the Borrower in this Agreement or in any certificate, financial statement or other document delivered to the Lender by the Borrower pursuant to this Agreement shall prove to have been incorrect, false or misleading in any material respect when made or deemed made.
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(c)
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The Borrower does not comply with any provision of this Agreement.
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(d)
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The Borrower is unable or admits its inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
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(e)
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Any corporate action, legal proceedings or other procedure or step is taken in relation to:
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(i)
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the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Borrower;
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(ii)
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a composition, compromise, assignment or arrangement with any creditor of the Borrower;
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(iii)
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the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of the Borrower, or any analogous procedure or step is taken in any jurisdiction.
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6.3.
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No Event of Default under paragraph 6.2 above will occur if the failure to comply is capable of remedy and is remedied within 10 Business Days of the Borrower giving notice to the Lender or the Lender becoming aware of the failure to comply.
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7.
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ARRANGEMENT FEE
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8.
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NOTICES
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9.
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SEVERABILITY
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10.
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WAIVER
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11.
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ASSIGNMENT AND TRANSFER
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12.
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COUNTERPARTS
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12.1.
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This Agreement may be executed by the parties hereto in separate counterparts and any single counterpart or set of counterparts executed and delivered by all the parties hereto shall constitute one and the same instrument.
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12.2.
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Delivery of a counterpart of this Agreement by e-mail attachment or telecopy shall be an effective mode of delivery.
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13.
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GOVERNING LAW
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14.
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JURISDICTION AND DISPUTE RESOLUTION
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(a)
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In the event of a dispute arising out of or relating to this Agreement, including any question regarding its existence, validity, breach or termination (known herein as a “Dispute”), the Parties agree that the Dispute shall be referred to and finally resolved by binding arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Section 14 of this Agreement. The language to be used in the mediation and in the arbitration shall be English.
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(b)
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If any arbitration is commenced pursuant to this Section 14: (i) the number of arbitrators shall be one; and (ii) the seat, or legal place, of arbitration shall be London, England.
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15.
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SERVICE OF PROCESS
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