Exhibit 10.6
GUARANTOR FORBEARANCE FEE PAYMENT AGREEMENT
GUARANTOR FORBEARANCE FEE PAYMENT AGREEMENT (the "Agreement"), made as of the
22nd day of December, 2000 by and between XXXX X. XXX, XX., a New York resident,
with an address for the receipt of mail at 0000 Xxxxx Xxxx, Xxxxxxxxx-xx-Xxxxxx,
Xxx Xxxx 00000 (the "Guarantor") and RELM WIRELESS CORPORATION, a Nevada
corporation, with an address for the receipt of mail at 0000 Xxxxxxxxxx Xxxxx,
Xxxx Xxxxxxxxx, Xxxxxxx 00000 (the "Lender").
RECITALS
1. Fort Orange Paper Company, Inc., formerly know as Fort Orange
Acquisition Co., Inc. ("Borrower") is indebted to Lender in the amount
of $1,600,000.00 as evidenced by that certain promissory note dated as
of June 16, 1997 (the "Existing Note").
2. Guarantor has guaranteed the obligations of the Borrower to the Lender
under the terms of the Existing Note pursuant to the terms of that
certain Guaranty dated June 16, 1997 (the "Guaranty").
3. Borrower and Lender have agreed to modify the terms of the Existing
Note pursuant to the terms of that certain Loan Modification Agreement
dated of even date herewith. In accordance with the Loan Modification
Agreement, the Borrower has agreed to reduce the outstanding principal
amount of the Existing Note by $700,000.00 and has remitted to Lender
all accrued and unpaid interest due under the Existing Note. In
addition, Guarantor and Lender have agreed to modify the terms of the
Guaranty.
4. In consideration for this payment and the terms and provisions of this
Agreement, the Lender has agreed to substitute, amend and restate the
Existing Note and in exchange therefor accept two promissory notes. One
in the face amount of $300,000.00 (the "$300K Note") and one in the
face amount of $600,000.00 (the "$600K Note").
5. In further consideration of the Lender's agreement to accept the $300K
Note and the $600K Note in exchange for the remaining obligations under
the Existing Note and the Lender's willingness to forebear from
enforcing its rights under the Existing Note and the Guaranty, the
Guarantor has agreed to provide the Lender with certain Forbearance
Payments in the event the $300K Note and the $600K Note are not paid in
full by the dates designated, all as set forth in this Agreement.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency
of which are hereby acknowledged, the Borrower and the Lender do each hereby
agree as follows:
DEFINITIONS
The following terms used in this Agreement shall have that meaning ascribed to
such term as set forth below:
"Closing Cost" means the fees and expenses incurred by the Borrower, any
Successor Entity or holders of Equity Interest in the Borrower or any Successor
Entity in connection with a Sale of the Borrower, including, without limitation,
attorneys fees and expenses, accountants fees and expenses, brokerage fees and
expenses and consultant's fees and expenses.
"Control" with respect to the Borrower or any Successor Entity means Xxxx X.
Xxx, Xx.'s ownership (or in the case of Permitted Family Transfers, control), of
more than fifty percent (50%) of the voting Equity Interest of that Person on a
fully diluted basis calculated assuming the exercise of all options and warrants
and assuming the conversion of any Equity Interest convertible into voting
Equity Interest which as of the date in question have an exercise price equal to
or less than the fair market value of such interest to be acquired.
"Debt Payments" mean the principal, interest, late charges, pre payment penalty
and all other fees and expenses paid by the Borrower, Successor Entity or the
holders of Equity Interest in the Borrower or any Successor Entity to any Person
to whom the Borrower or Successor Entity owes any sum of money, including,
without limitation, any (i) lender to the Borrower or Successor Entity, (ii) any
third party to whom the Borrower or Successor Entity is indebted or (iii) any
trade creditor of the Borrower or Successor, in connection with a Sale of the
Borrower.
"Distribution Date" means (i) those dates upon which any sums constituting
Reserves are (a) released from escrow or (b) are no longer subject to any
contingency on distribution and are distributed to the Borrower, Successor
Entity and/or holders of Equity Interest in the Borrower and/or any Successor
Entity and (ii) those dates upon which any Seller Financing Payments are
distributed to the Borrower, Successor Entity and/or holders of Equity Interest
in the Borrower.
"Equity Interest" means capital stock, warrants, options, convertible securities
or notes, other rights to acquire capital stock, stock appreciation rights,
phantom stock rights, profit participation rights (other than reasonable
employee bonuses based upon profitability), and other rights and interest in any
share of the equity of an entity, of any kind.
"Gross Proceeds" means the total amount of cash and the fair market value (on
the date of payment) of all other property paid or payable to the Borrower,
Successor Entity or to the holders of Equity Interest in the Borrower or
Successor Entity for their Equity Interest therein in connection with a Sale of
the Borrower.
"Net Proceeds" means Gross Proceeds less Closing Cost, Reserves, Debt Payments
and Seller Financing Payments.
"Payment Due Date" means the date upon which a Sale of the Borrower has been
completed.
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"Permitted Family Transfers" means transfers of Equity Interests by Xxxx X. Xxx,
Xx. to members of his immediate family, or to trusts for the beneficial interest
of Xxxx X. Xxx, Xx. or members of his immediate family, or to entities or
partnerships the sole owners and beneficiaries of which are Xxxx X. Xxx, Xx. and
members of his immediate family, provided, however, that in each case Xxxx X.
Xxx, Xx. at all times retains full and unencumbered voting control with respect
to such transferred Equity Interests.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision.
"Reserves" means all Gross Proceeds escrowed or otherwise not distributed to the
Borrower, Successor Entity or the holders of Equity Interest in the Borrower or
Successor Entity and held against any liability or to satisfy any obligation of
the Borrower, Successor Entity or the holders of Equity Interest in the Borrower
or Successor Entity in connection with a Sale of the Borrower, such sums
including, but not limited to sums held in connection with (i) any
indemnification obligation of the Borrower, Successor Entity or the holders of
Equity Interest in the Borrower or Successor Entity, (ii) the payment of any tax
liability of the Borrower, Successor Entity or the holders of Equity Interest in
the Borrower or Successor Entity arising out of any Sale of the Borrower or
(iii) to satisfy any future obligation of the Borrower, Successor Entity or the
holders of Equity Interest in the Borrower or Successor Entity to the purchaser
in connection with any Sale of the Borrower.
"Sale of the Borrower" means (i) the consolidation or merger of the Borrower or
any Successor Entity into any Person not under the Control of Xxxx X. Xxx, Xx.
and/or one or more Permitted Family Transferees, (ii) the voluntary sale or
transfer of all or substantially all of the assets of Borrower or any Successor
Entity in one or more related transactions to, any Person, other than Xxxx X.
Xxx, Xx. and/or one or more Permitted Family Transferees or (iii) any voluntary
change in Control of the Borrower or any Successor Entity.
"Seller Financing Payments" means (i) any portion of the purchase price not paid
at the closing of any Sale of the Borrower but (ii) to be paid to the Borrower,
Successor Entity or any holder of Equity Interest in the Borrower after the
closing of a Sale of the Borrower.
"Successor Entity" means Xxxx X. Xxx, Xx. and/or any Person under the control of
Xxxx X. Xxx, Xx. and/or one or more Permitted Family Transferees which have (i)
consolidated with or into which the Borrower has been merged and (ii) purchased
all or substantially all of the assets of Borrower in one or more related
transactions.
All capitalized terms used herein and not otherwise defined herein shall have
the meaning given said terms in the Loan Modification Agreement, and/or the
documents referenced therein.
I. FORBEARANCE FEE. If the $300K Note and the $600K Note are not paid in full on
or before December 31, 2005, then (i) on the Payment Due Date, the Guarantor
shall remit to the Lender as a Forbearance Fee an amount equal to (a) Twenty
Percent (20%) of the Net Proceeds less (b) Four Hundred Fifty Thousand Dollars
($450,000.00) and (ii) on each and every
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Distribution Date thereafter an amount equal to Twenty Percent (20%) of the
Reserves or Seller Financing Payments distributed on such date; provided,
however, that the Guarantor shall not be required to remit such Reserves or
Seller Financing Payments to the Lender until Twenty Percent (20%) of Net
Proceeds plus Twenty Percent (20%) of the sum of all previous distributions of
Reserves or Seller Financing Payments exceed Four Hundred Fifty Thousand Dollars
($450,000.00).
II. SUCCESSORS. This Agreement shall be binding upon the Guarantor, his heirs,
successors and representatives.
III. GENERAL TERMS AND PROVISIONS. (i) Guarantor shall make all payments to
Lender at the address of Lender as set forth on the first page of this Agreement
or to such other place or places as Lender, from time to time, shall designate
in writing to Guarantor. (ii) Interest shall not accrue on nor shall the
Guarantor be obligated to make any payment of interest with respect to any
payment under section I, hereof. (iii) The Lender's right to receive payments
hereunder shall be subject to the terms and conditions of the certain Standby
Creditor's Agreement dated of even date herewith by and among the New York
Business Development Corporation ("NYBDC"), Borrower and Lender (the "Standby
Agreement"). The NYBDC shall be a third party beneficiary of this limitation as
if it were a party hereto. (iv) Nothing contained in this Agreement shall or
shall be deemed to modify the terms and provisions of the $300K Note and/or the
$600K Note. (v) Subject to the terms and provisions of the Standby Agreement,
the Guarantor shall take all actions reasonably necessary to cause any payment
due on the Payment Due Date hereunder to be made prior to the payment of any
sums due and owing on that date under the $300K Note and the $600K Note.
IV. MISCELLANEOUS PROVISIONS. (i) This Agreement and all questions relating to
its validity, interpretation or performance and enforcement (other than matters
concerning choice of law) shall be governed by and construed in accordance with
the laws of the State of New York. (ii) This Agreement may not be modified or
amended other than by an agreement in writing signed by Guarantor and Lender.
(iii) The right of the Lender to the Forbearance Fee under section 1, hereof, is
non negotiable. The Lender may not assign its rights to receive such payments to
any third party. (iv) The parties shall execute and deliver to each other any
documents reasonably requested to carry out the purposes of this Agreement. (v)
The provisions of this Agreement shall inure and be binding upon the parties
hereto and their respective successors and permitted assigns. (vi) This
Agreement and all other agreements executed in consummation of the transactions
contemplated hereby, may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Guarantor Forbearance
Fee Payment Agreement as of the date and year written above.
"GUARANTOR"
/s/ XXXX X. XXX, XX.
--------------------------------
Xxxx X. Xxx, Xx.
"Lender"
RELM WIRELESS CORPORATION
By: /s/ XXXXXX XXXXXXX
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Its: Chairman
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