FORBEARANCE AGREEMENT
Exhibit 6.26
This Forbearance Agreement (this “Agreement”) is made effective as of the 1st day of December, 2016 (the “Effective Date”), between Revitalizing Auto Communities Environmental Response Trust (“RACER”) and Xxxx Motors, Inc. (“Xxxx”).
RECITALS
A. Racer Properties LLC, an affiliate of RACER, and Xxxx are parties to that certain Purchase and Sale Agreement dated February 28, 2013 (the “PSA”). In connection with the PSA, Xxxx, as the maker, and RACER, as the holder, entered into that certain Promissory Note dated February 28, 2013, as amended by that certain First Amendment to Promissory Note dated March 17, 2015 (the “Note”), whereby RACER made a loan to Xxxx in the original principal amount of $23,000,000.
B. Pursuant to that certain Intercreditor and Subordination Agreement dated February 28, 2013, as amended, among CH Capital Lending, LLC, as successor in interest to GemCap Lending I, LLC (“Senior Lender”), RACER, and Xxxx, RACER agreed to subordinate the Note with Xxxx to Senior Lender’s promissory note with Xxxx.
C. As of the Effective Date, Xxxx has failed to pay to RACER in full the October and November 2016 payments due under the Note.
D. As of the Effective Date, the outstanding Note balance, including accrued interest and unpaid late charges, is $27,029,342.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Incorporation of Recitals. The foregoing Recitals are incorporated as though fully set forth herein.
2. Forbearance. Subject to the terms and conditions of this Agreement and provided that Xxxx is not in default hereunder or in connection with any other term or condition of the Note, PSA or any related agreements, RACER agrees to forebear exercising its rights under the Note and applicable law from October 1, 2016 through December 31, 2016 (the “Forbearance Period”). Provided that Xxxx is not in default hereunder or in connection with any other term or condition of the Note, PSA or any related agreements, Xxxx may request that RACER extend the Forbearance Period for one (1) month by providing written notice to RACER no later than December 20, 2016. Any extension of the Forbearance Period will be at RACER’s sole discretion. Interest will continue to accrue during the Forbearance Period (and any extension thereof, if applicable) as set forth in the Note. Upon the conclusion of the Forbearance Period, Xxxx will pay RACER all amounts due and owing, including interest accrued during the Forbearance Period. In the event that Xxxx defaults hereunder or in connection with any other term or condition of the Note, PSA or any related agreements, the Forbearance Period shall immediately terminate and all amounts owed to RACER will become immediately due and payable.
3. Refinancing. As of the Effective Date, Xxxx shall promptly commence and diligently pursue refinancing the Note and shall provide RACER with a written update detailing its progress in finding a replacement lender every ninety (90) days after the Effective Date. If Xxxx obtains a commitment for financing substantially similar to the financing under the Note (the “Replacement Financing”), Xxxx shall promptly enter into such Replacement Financing and, simultaneously with the receipt by Xxxx of the Replacement Financing, pay the outstanding balance under the Note in full.
4. Acknowledgement; Other Debt. Xxxx acknowledges that as of November 15, 2016, the outstanding principal balance of that certain loan made by Senior Lender to Xxxx is $4,732,639.18. In the event that (a) Senior Lender is paid all amounts owed to it by Xxxx, and (b) Xxxx pays any other creditor after the Effective Date, including suppliers, before such payment is due, the Forbearance Period shall immediately terminate and all payments due to RACER under the Note shall be increased to the monthly sum of $347,000, until the Note is paid in full.
5. No Modification of the Note. Other than the modifications set forth herein, nothing in this Agreement shall be deemed to modify, reduce or effect Elio’s obligations under the Note.
6. Amendments. No provision of this Agreement may be amended or modified unless the parties consent thereto in writing.
7. Further Assurances. The parties agree to execute any and all additional documents that may reasonably be required in order to evidence, secure or carry out the agreements and undertakings set forth in this Agreement.
8. Counterparts. This Agreement may be executed in multiple counterparts and by facsimile or other electronic signatures, each of which shall constitute a duplicate original, but all of which together shall constitute one and the same instrument.
9. Applicable Law. This Agreement is executed in and shall be construed under and governed by the laws of the State of Louisiana, without regard to conflict of laws principles.
10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
11. Costs of Enforcement. In the event that any party to this Agreement commences any legal action to enforce its rights hereunder as a result of the breach of this Agreement by other party, the prevailing party in such action shall be entitled to recovery all of its costs and expenses in connection therewith, including all reasonable legal fees and costs.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the Effective Date.
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REVITALIZING AUTO COMMUNITIES
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ENVIRONMENTAL RESPONSE TRUST
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By: EPLET, LLC, acting solely in its capacity
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as Administrative Trustee of Revitalizing Auto
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Communities Environmental Response Trust
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By:
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/s/ Xxxxxxx X. Laws
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XXXXXXX X. LAWS, not individually,
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but acting solely in his capacity
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as Managing Member
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XXXX MOTORS, INC.
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By:
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/s/ Xxxx Xxxx
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Its:
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CEO
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