Exhibit 10.1
NINTH AMENDMENT TO FORBEARANCE AGREEMENT
This Ninth Amendment to Forbearance Agreement (the "Amendment") is
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entered into as of this 28th day of December, 2009 by and among Ronson
Corporation, a New Jersey corporation ("Parent"), Ronson Consumer Products
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Corporation, a New Jersey corporation ("RCPC"), Ronson Aviation, Inc., a New
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Jersey corporation ("RAI") and Ronson Corporation of Canada Ltd., an Ontario
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corporation ("Ronson Canada") (RCPC and RAI are collectively and individually
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referred to as the "Domestic Borrower" or "Domestic Borrowers"; the Domestic
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Borrower and Ronson Canada are collectively and individually referred to as the
"Borrower" or "Borrowers", and the Borrowers, together with Parent are
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collectively and individually referred to as the "Obligors") and Xxxxx Fargo
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Bank, National Association ("Lender"), acting through its Xxxxx Fargo Business
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Credit operating division.
RECITALS:
Borrowers and Lender are parties to a certain Credit and Security
Agreement dated as of May 30, 2008 (as amended, modified, supplemented or
restated from time to time, the "Credit Agreement"), relating to financing by
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Lender to Borrowers.
Certain Events of Default occurred under the Credit Agreement and, as a
result thereof, Lender and Borrowers entered into that certain Forbearance
Agreement dated as of March 29, 2009 (as amended modified, supplemented or
restated from time to time, the "Forbearance Agreement"; capitalized terms used
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but not specifically defined herein shall have the meanings provided for such
terms in the Forbearance Agreement), whereby Lender agreed to forbear from
exercising certain of its rights and remedies available as a result of the
Existing Events of Default.
The Forbearance Agreement expires pursuant to its terms not later than
December 31, 2009.
Borrowers have requested that Lender amend the definition of
Termination Event to extend the stated expiration date in the Forbearance
Agreement from December 31, 2009 to February 5, 2010 in order to provide
Borrowers with additional time to consummate a Liquidity Transaction and to
amend certain terms and conditions of the Credit Agreement.
Lender has considered Borrowers' request and, in an effort to continue
working with Borrowers, hereby agrees to amend the Forbearance Agreement and the
Credit Agreement on the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Amendment to Forbearance Agreement. As of the date hereof, Section
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2(b) of the Forbearance Agreement shall be amended and restated in its entirety
to read as follows:
(b) For purposes of this Agreement, a "Termination Event"
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shall mean the earliest to occur of (i) February 5, 2010 and (ii) any
one or more of the following:
(A) the failure of the Obligors to comply with the
terms, covenants, agreements and conditions of this Agreement;
(B) any representation or warranty made herein shall
be incorrect in any material respect;
(C) the occurrence of any Event of Default under the
Credit Agreement, other than (i) the Existing Events of Default
or (ii) breach by Obligors of their obligation pursuant to (a)
Section 6.1(a) of the Credit Agreement to deliver audited year
end annual financial statements for the fiscal year ending
December 31, 2008 within 90 days of the end of such fiscal year
or (b) Section 6.1(c) of the Credit Agreement to deliver monthly
financial statements to Lender for the months ending October 31,
2009 and November 30, 2009, within 30 days of the end of such
months;
(D) Obligors shall fail to employ a CRO (as defined
below) throughout the term of this Agreement;
(E) in the Lender's discretion, it determines that
Parent is no longer actively pursuing a Liquidity Transaction;
and
(F) any Person, other than Lender, shall exercise its
rights and remedies against the Obligors as a result of defaults
or events of defaults arising under any agreement between
Obligors and such Person due to cross-defaults arising from the
Existing Events of Default.
2. Amendments to Credit and Security Agreement. The following
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definitions set forth in Section 1.1 of the Credit Agreement shall be amended
and restated in their entirety to read as follows:
"Accommodation Overadvance Limit" means up to $2,000,000 from
the Accommodation Overadvance Funding Date through the occurrence of a
Termination Event (as such term is defined in the Forbearance
Agreement); provided, however, that on such date as Lender shall have
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received evidence, satisfactory to Lender in its sole discretion, that
the Securities and Exchange Commission (the "SEC") has (i) deemed the
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joint proxy submitted by Obligors to the SEC on December 16, 2009 (the
"Proxy"), to be effective and (ii) given its consent to Obligors
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mailing the Proxy to Parent's shareholders, the amount set forth herein
shall automatically be increased to $2,200,000.
"Maximum Line Amount" means $3,500,000; provided, however,
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that on such date as Lender shall have received evidence, satisfactory
to Lender in its sole discretion, that the SEC has (i) deemed the Proxy
to be effective and (ii) given its consent to Obligors mailing the
Proxy to Parent's shareholders, the amount set forth herein shall
automatically be increased to $3,700,000, unless this amount is reduced
pursuant to Section 2.12, in which event it means such lower amount;
3. Release of Liens. Obligors acknowledge and agree that Lender shall
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have no obligation upon or following the sale of either (a) RAI's assets to
Hawthorne TTN Holdings, LLC pursuant to that certain Asset Purchase Agreement
dated as of May 15, 2009, as amended, and/or (b) RCPC's assets to Zippo
Manufacturing, Inc. and Nosnor, Inc., pursuant to that certain Asset Purchase
Agreement dated as of October 5, 2009, to make any loans or Advances to the
Obligors.
4. Reaffirmation of Forbearance Fee. Obligors hereby reaffirm their
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agreement to pay Lender a forbearance fee in the amount of Five-Hundred Thousand
Dollars ($500,000) in accordance with the terms and conditions set forth in the
Seventh Amendment to Forbearance Agreement dated as of July 31, 2009.
5. Sums Secured; Estoppel. The Obligors acknowledge and reaffirm that
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their obligations to Lender as set forth in and evidenced by the Loan Documents
are due and owing without any defenses, set-offs, recoupments, claims or
counterclaims of any kind as of the date hereof. To the extent that any
defenses, set-offs, recoupments, claims or counterclaims may exist as of the
date hereof, the Obligors waive and release Lender from the same.
6. No Other Changes. Except as explicitly amended by this Amendment,
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all of the terms and conditions of the Forbearance Agreement shall remain in
full force and effect.
7. References. All references in the Forbearance Agreement to "this
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Agreement" shall be deemed to refer to the Forbearance Agreement as amended
hereby.
8. No Waiver. Except as specifically set forth in Paragraph 1 above,
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the execution of this Amendment shall not be deemed to be a waiver of any
Default or Event of Default under the Credit Agreement, a waiver of any
Termination Event under the Forbearance Agreement or breach, default or event of
default under any Loan Documents or other document held by Lender, whether or
not known to Lender and whether or not existing on the date of this Amendment.
9. Waiver and Release of Claims and Defenses. The Obligors hereby waive
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and release all claims and demands of any nature whatsoever that they now have
or may have against Lender, whether arising under the Loan Documents or by any
acts or omissions of Lender, or any of its directors, officers, employees,
affiliates, attorneys or agents, or otherwise, and whether known or unknown,
existing as of the date of the execution of this Amendment, and further waive
and release any and all defenses of any nature whatsoever to the payment of the
Obligations or the performance of their obligations under Loan Documents.
10. Reaffirmation of Loan Documents. The Obligors hereby agree with
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reaffirm and acknowledge their representations and warranties contained in the
Loan Documents. Furthermore, the Obligors represent that their representations
and warranties contained in the Loan Documents continue to be true and in full
force and effect. This agreement, reaffirmation and acknowledgment is given to
Lender by the Obligors without defenses, claims or counterclaims of any kind. To
the extent that any such defenses, claims or counterclaims against Lender may
exist, the Obligors waive and release Lender from same.
11. Ratification and Reaffirmation of Loan Documents. The Obligors
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ratify and reaffirm all terms, covenants, conditions and agreements contained in
the Loan Documents.
12. No Preferential Treatment. No Obligor has entered into this
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Amendment to provide any preferential treatment to Lender or any other creditor.
No Obligor intends to file for protection or seek relief under the United States
Bankruptcy Code or any similar federal or state law providing for the relief of
debtors.
13. Legal Representation. Each of the parties hereto acknowledge that
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they have been represented by independent legal counsel in connection with the
execution of this Amendment, that they are fully aware of the terms and
conditions contained herein, and that they have entered into and executed the
within Amendment as a voluntary action and without coercion or duress of any
kind.
14. Partial Invalidity; No Repudiation. If any of the provisions of
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this Amendment shall contravene or be held invalid under the laws of any
jurisdiction, this Amendment shall be construed as if not containing such
provisions and the rights, remedies, warranties, representations, covenants, and
provisions hereof shall be construed and enforced accordingly in such
jurisdiction and shall not in any manner affect such provision in any other
jurisdiction, or any other provisions of this Amendment in any jurisdiction.
15. Binding Effect. This Amendment is binding upon the parties hereto
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and their respective heirs, administrators, executors, officers, directors,
representatives and agents.
16. Governing Law. This Amendment shall be governed by the laws of the
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State of New York.
17. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVE THE RIGHT TO
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A TRIAL BY JURY, AS TO ANY ACTION WHICH MAY ARISE AS A RESULT OF THE LOAN
DOCUMENTS, THIS AGREEMENT OR ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH.
18. Counterparts. This Amendment and/or any documentation contemplated
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or required in connection herewith may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
be considered one and the same document. Delivery of an executed counterpart of
a signature page of this document by facsimile shall be effective as delivery of
a manually executed counterpart of this document.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, do hereby execute this Amendment the date and year first above written.
RONSON CORPORATION
By: /s/ Xxxx Xxxxxxx
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Print Name: Xxxx Xxxxxxx
Print Title: Chief Restructuring Officer
RONSON CONSUMER PRODUCTS CORPORATION
By: /s/ Xxxx Xxxxxxx
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Print Name: Xxxx Xxxxxxx
Print Title: Chief Restructuring Officer
RONSON AVIATION, INC.
By: /s/ Xxxx Xxxxxxx
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Print Name: Xxxx Xxxxxxx
Print Title: Chief Restructuring Officer
RONSON CORPORATION OF CANADA LTD.
By: /s/ Xxxx Xxxxxxx
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Print Name: Xxxx Xxxxxxx
Print Title: Chief Restructuring Officer
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Vice President
