Exhibit 10.13
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RELEASE AND PAY-OFF AGREEMENT
THIS RELEASE AND PAY-OFF AGREEMENT (the "Agreement") is entered into on
October 23, 1997 by and among TKO Finance Corporation ("Lender") and ICON
Holdings Corp., a Delaware corporation, ("Borrower"), ICON Capital Corp., a
Connecticut corporation, ICON Financial Corp., a Delaware corporation, ICON
Funding Corp., a Delaware corporation and ICON Securities Corp., a New York
corporation (collectively referred to herein as "Corporate Guarantors"),
Beaufort X.X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxx Xxxxxx, Xxxx X.
Xxxxx and Xxxxxx Xxxxx (collectively, the "Individual Guarantors"). Borrower,
Corporate Guarantors and Individual Guarantors are sometimes collectively
referred to herein as "Loan Parties".
RECITALS:
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WHEREAS, Borrower and Lender have entered into that certain Loan and
Security Agreement dated as of June 20, 1997, as amended (the "Loan Agreement"),
pursuant to which Lender made certain financial accommodations available to
Borrower (any capitalized term not otherwise defined herein shall have the
meaning set forth in the Loan Agreement); and
WHEREAS, Corporate Guarantors and Individual Guarantors (collectively,
"Guarantors") have executed guaranties of payment and performance of the
liabilities and obligations under the Loan Documents; and
WHEREAS, the Loan Documents prohibit prepayment of principal and
interest thereunder; and
WHEREAS, Borrower and Lender have entered into that certain Put and
Call Agreement dated as of June 20, 1997; and
WHEREAS, Borrower desires to effect an initial public offering of $100
million of its stock and has requested that Lender accept a prepayment of the
indebtedness under the Loan Documents and accept a termination of all rights
under the Put and Call Agreement; and
WHEREAS, Lender and Loan Parties desire to enter into this Agreement to
set forth the terms and conditions upon which Lender agrees to accept such
prepayment and terminate the Put and Call Agreement.
NOW THEREFORE, in consideration of the foregoing Recitals, each of
which is made a part hereof, the parties do hereby agree as follows:
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1. Pay-Off Amount.
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(a) Assuming that the payments of principal and interest due prior to the
date payment is actually received have been timely paid and that no Event of
Default or Unmatured Default has occurred and is continuing under the terms of
the Loan Documents, the amount necessary to pay all liabilities, obligations and
indebtedness under the terms of the Loan Agreement, the other Loan Documents and
the Put and Call Agreement (collectively, the "Payoff Amount") is:
(i) Principal and Interest. An amount equal to the unpaid
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principal balance, determined by reference to the Amortization
Schedule, attached hereto as Exhibit A plus all accrued but
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unpaid interest.
(ii) Pre-Payment Fee. A pre-payment fee in an amount equal to
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$226,328; plus
(iii) Redemption Fee. A Redemption Fee for the Class B non-voting
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shares of stock in an amount equal to $349,545; plus
(iv) Per Deim. In the event payment is not received on or before
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12:00 noon, Chicago Time, January 1, 1998, add a per deim
charge of $111.66, for each additional day or part thereof,
until payment of the Pay-Off amount is received.
(b) The terms of this letter shall expire on March 31, 1998. If the Payoff
Amount is not received on or before 12:00 PM on such date, this letter must be
amended by written amendment signed by Lender.
(c) In consideration of entering into this Agreement, concurrently
herewith, Borrower shall pay to Lender a commitment fee in an amount equal to
$5,000.
(d) All payments due hereunder must be made by wire transfer of the Payoff
Amount to the following account:
First Chicago National Bank
Chicago, IL
ABA #071 000013
For the Account of TKO Finance Corporation
Account No. 119 289 86
Attn: Xxxx Xxxxx
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2. Termination and Release By Lender.
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(a) Upon payment of the Payoff Amount in accordance with the terms of
Section 1, (i) the Loan Agreement and the Loan Documents shall be and are hereby
terminated, canceled and of no further force and effect, except for those
provisions of the Loan Documents relating to the Surviving Obligations (defined
below), (ii) all security interests and liens upon any and all properties and
assets of Borrower and/or Guarantors heretofore granted by Borrower and/or
Guarantors to Lender pursuant to the Loan Documents and/or the Put and Call
Agreement shall be and are hereby released and terminated, and (iii) the
certificate evidencing all shares of Class B stock of Borrower owned by Lender
shall be and are tendered to Borrower for redemption.
(b) Upon receipt of the Pay-Off Amount in accordance with the terms of
Section 1, Lender will deliver: (i) executed releases and Uniform Commercial
Code termination statements pertaining to the liens and security interests of
Lender in certain property of Borrower and Guarantors, (ii) the original
certificates of stock pledged to secure payment of the Secured Obligations,
(iii) the promissory note shall be marked paid in full and delivered to
Borrower, (iv) a release of all guarantees, (v) such other termination
statements, releases and other agreements, in form and substance reasonably
satisfactory to Borrower and/or Guarantors, as such parties may request in
connection with Lender's release and termination of its liens and security
interests in the property of Borrower and/or Guarantors, and (vi) the
certificate evidencing all of the Class B stock owned by Lender shall be
tendered to Borrower for redemption and cancellation.
3. Release by Loan Parties. Upon payment of the Pay-Off Amount, Borrower
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and Guarantors hereby, jointly and severally, release, discharge and acquit
Lender, its officers, directors, agents, attorneys and employees and its and
their respective successors and assigns, from all obligations and any and all
claims, demands, debts, accounts, contracts, liabilities, actions and causes of
actions, whether in law or in equity, that Borrower and/or Guarantors at any
time had or has arising or relating to the Loan Documents, or that its
successors and assigns hereafter can or may have against Lender, its officers,
directors, agents, attorneys or employees and its and their respective
successors and assigns, except for obligations of Lender under this Agreement.
4. Surviving Obligations. Notwithstanding anything to the contrary
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contained herein, neither Borrower nor Guarantors are released from, and hereby
ratify and confirm their respective continuing liability to Lender for full and
indefeasible payment and performance of, the following (collectively, the
"Surviving Obligations"):
(a) all obligations of Borrower and Guarantors to Lender hereunder,
including without limitation, the obligations described in Sections 4 and 5
hereof; and
(b) all indemnification obligations, reimbursement obligations and
other obligations in favor of Lender that, pursuant to the express terms of the
Loan Documents as in effect immediately prior to the effectiveness hereof,
survive the termination of the Loan Documents under which they arise; and
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(c) Borrower shall reimburse Lender for all costs and expenses
incurred in connection with the negotiation, execution and performance of this
Agreement, including but not limited to reasonable attorney's fees and filing
fees.
5. Indemnification for Returned Items and Related Expenses. Borrower and
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Guarantors, jointly and severally, agree to indemnify Lender from any and all
loss, cost, damage or expense (including attorneys' fees) which Lender may
suffer or incur at any time as a result of any non-payment, claim, refund or
dishonor of any checks or other similar items which have been credited by Lender
for the account of Borrower on or prior to the date on which Lender receives the
Payoff Amount, together with any expenses or other charges incident thereto and,
in addition, Borrower agrees to pay Lender on demand all costs and expenses
(including attorneys' fees and legal expenses) incurred in connection with this
Agreement, and any instruments or documents contemplated hereunder.
6. Reinstatement. Notwithstanding anything to the contrary contained
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herein, in the event any payment made to, or other amount of value received by,
Lender from or for the account of Borrower and/or Guarantors is voided,
rescinded, set aside or must otherwise be returned or repaid by Lender whether
in any bankruptcy, reorganization, insolvency or similar proceeding involving
Borrower or otherwise, the indebtedness intended to be repaid thereby shall be
reinstated (without any further action by any party) and shall be enforceable
against Borrower. In such event, Borrower and Guarantors shall be and remain
liable to Lender for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by Lender.
7. Counterparts. This Agreement may be signed in one or more
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counterparts, each of which shall be an original, but all of which together
shall constitute one agreement, binding on all of the parties hereto
notwithstanding that all of the parties hereto are not signatories to the same
counterpart. Each of the undersigned parties authorizes the assembly of one or
more original copies of this Agreement through the combination of the several
executed counterpart signature pages with one or more bodies of this Agreement,
including the Exhibits, if any, to this Agreement. Each such compilation of this
Agreement shall constitute one original of this Agreement. Notwithstanding the
foregoing, in the event this Agreement is executed by all parties hereto other
than Xxxxx X. Xxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxx, this Agreement shall,
nonetheless, be binding upon all parties which are signatory hereto, including
Lender, and Borrower shall use its best efforts to deliver the signatures of
Xxxxx X. Xxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxx within ten (10) business days
after the execution hereof by all other parties.
8. Fax Execution. For purposes of negotiating and finalizing this
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Agreement (including any subsequent amendments thereto), any signed document
transmitted by facsimile machine ("FAX") shall be treated in all manner and
respects as an original document. The signature of any party by FAX shall be
considered for these purposes as an original signature. Any such FAX document
shall be considered to have the same binding legal effect as an original
document, provided that an original of the faxed document was mailed by first
class U.S. Mail or personally delivered to the recipient, on the date of its
transmission with proof of the fax transmission. Any FAX document subject to
this Agreement shall be re-executed by both parties in an original form. The
undersigned
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parties hereby agree that neither shall raise the use of the FAX or the fact
that any signature or document was transmitted or communicated through the use
of a FAX as a defense to the formation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Release and Pay-Off
Agreement as of the date written above.
BORROWER:
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ICON Holdings Corp., a Delaware corporation
BY:
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Title:
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GUARANTORS:
ICON Capital Corp., a Connecticut corporation
BY:
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Title:
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ICON Financial Corp., a Delaware corporation
BY:
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Title:
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ICON Funding Corp., a Delaware corporation
BY:
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Title:
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ICON Securities Corp., a New York corporation
BY:
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Title:
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(SIGNATURE PAGE CONTINUED)
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Beaufort X.X. Xxxxxx
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Xxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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Xxxx Xxxxxx
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Xxxx X. Xxxxx
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Xxxxxx Xxxxx
LENDER:
TKO Finance Corporation
BY:
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Title:
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