EXHIBIT 10.4
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SUBORDINATION AGREEMENT
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THIS SUBORDINATION AGREEMENT ("Agreement") is made as of April 21, 2003, by
BLUEBIRD FINANCE LIMITED, a company organized under the laws of the British
Virgin Islands, ("Bluebird"), SIGNATURE EYEWEAR, INC., a California corporation
("Borrower") and HOME LOAN AND INVESTMENT COMPANY, a Colorado corporation
("Lender").
RECITALS
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A. WHEREAS, Borrower and Lender have entered into that certain Loan
and Security Agreement (the "Loan Agreement") of even date herewith whereby
Lender agrees to lend to Borrower the original principal amount of Three Million
and No/100ths Dollars (US$3,000,000.00) (the "Loan") and a revolving line of
credit in an amount not to exceed Five Hundred Thousand and No/100ths Dollars
(US$500,000.00) (the "Credit Loan"). The Loan is evidenced by that certain
promissory note (the "Note") of even date herewith in the original principal
amount of Three Million and No/100 Dollars (US$3,000,000.00). The Credit Loan is
evidenced by that certain promissory note (the "Credit Note") of even date
herewith in the original principal amount of Five Hundred Thousand and No/100ths
Dollars (US$500,000.00) (the Note and the Credit Note are collectively referred
to herein as the "Notes"). Each of the Notes are made by Borrower and payable to
Lender, and secured by the Financing Statements, Letter of Credit and such other
documents securing the payment and performance of the indebtedness and other
obligations of Borrower to Lender under the Loan Agreement. Capitalized terms
used herein without further definition have the meanings given to them in the
Loan Agreement.
B. WHEREAS, Bluebird and Borrower have entered into that certain
Credit Facility of even date herewith wherein Bluebird has agreed to make
available to Borrower a revolving credit facility in an amount not to exceed
Four Million One Hundred Fifty Thousand and No/100 Dollars ($4,150,000.00)
("Credit Facility"). Bluebird and Borrower have also entered into that certain
Stock Purchase Agreement of even date herewith wherein Bluebird has agreed to
subscribe for $800,000.00 of preferred stock in Borrower ("Preferred Stock")
(the Preferred Stock and Credit Facility shall be collectively referred to as
the "Bluebird Obligations".)
AGREEMENT
IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS CONTAINED HEREIN,
AND SUBJECT TO THE TERMS OF THIS AGREEMENT AND THE RELATED LOAN DOCUMENTS,
Bluebird, Borrower and Lender hereby agree as follows:
1. To secure the payment and performance of the indebtedness and other
obligations of Borrower to Lender under the Loan Documents and in consideration
of the extension of the Loan and the Credit Loan to Borrower, Bluebird and
Borrower agree and covenant that Bluebird's interests in Borrower, including
without limitation any of Bluebird's rights to receive distributions, income,
profits, compensation, return of capital or equity in Borrower, including
without limitation such rights under or arising from the Bluebird Obligations,
are and shall be subject, subordinate and inferior to (a) the security interest
in the Collateral granted by Borrower to Lender under the Loan Agreement, and
all right, title and interest of Lender in the Collateral, and (b) all other
security documents now or hereafter securing payment of any indebtedness of the
Borrower to Lender evidenced by the Loan Documents which cover or affect the
Collateral ("Security Documents").
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2. Until the indebtedness secured by the Loan Documents shall have been
paid in full, Bluebird and Borrower further agree that Borrower may only make
the following payments under or arising from the Bluebird Obligations: (a)
scheduled quarterly payments of principal of the Credit Facility in an amount
not to exceed Seventy Two Thousand Five Hundred and No/100ths Dollars
(US$72,500.00) (starting no earlier than the second anniversary of this
Agreement); (b) scheduled interest payments pursuant to the terms of the Credit
Facility; and (c) dividend payments pursuant to the terms of the Preferred
Stock, provided that no Event of Default has occurred and is continuing or would
be caused, in whole or in part, by such permitted payments. Such permitted
payments specifically exclude any other rights of Bluebird to receive payments,
distributions, income, profits, compensation, return of capital or equity in
Borrower. Bluebird and Borrower agree that any payment or distribution in
violation of this Agreement, as reasonably determined by Lender, shall be held
in trust by Bluebird for the benefit of Lender, and shall be payable to Lender
upon Lender's written demand to Bluebird. Lender shall not be obligated to
provide notice of an Event of Default to Bluebird prior to Lender's written
demand for any such funds held in trust by Bluebird pursuant to this Agreement.
3. Notwithstanding any provisions of this Agreement or the other Loan
Documents to contrary, Lender agrees that it shall not cause any amendment or
extension of any Loan Document, the result of which, at any time, directly or
indirectly (a) changes the maturity dates of the Notes, (b) changes the dates
for any payments under the Notes (except as a result of acceleration of the
repayment of the Notes), or (c) increases Borrower's interest payments or
indebtedness to Lender under the Loan Documents, in each case without Bluebird's
prior written consent.
4. Upon the occurrence of an Event of Default which is not cured by
Borrower in accordance with the Loan Agreement, Lender shall provide to Bluebird
written notice of such Event of Default and Borrower's failure to cure such
Event of Default at least five (5) working days prior to Lender's exercise of
its available remedies as a secured creditor pursuant to the Code; provided,
however, this provision shall not restrict Lender's right to (a) declare all
outstanding principal and interest under the Note or Credit Note immediately due
and payable, (b) draw upon the Letter of Credit, or (c) claim and transfer to
Lender's account the debenture referred to in Section 7 of the Loan Agreement,
and shall in no event preclude Lender from taking any action necessary to
protect or secure the Collateral, including Lender taking possession of any or
all of the Collateral, during such period of time.
5. The execution and delivery of this Agreement shall not subject Lender
to, or transfer or pass to Lender, or in any way affect or modify, the liability
of Borrower under any or all of the Loan Documents hereby subordinated.
6. Borrower hereby agrees and acknowledges that neither the acceptance of
this Agreement by Lender nor the exercise of, or failure to exercise, any right,
power or remedy conferred upon Lender in this Agreement shall be deemed or
construed to obligate Lender, or its successors or assigns, to pay any sum of
money, take any action or incur any liability in connection with any of the Loan
Documents hereby subordinated to Lender.
7. Any notice required to be given to any party pursuant to any provision
of this Agreement shall take effect upon receipt, shall be in writing and
sufficient if delivered personally or sent by telecopier (with written
confirmation from the receiving party of receipt by the receiving party), or
nationally recognized overnight courier or sent by registered or certified mail,
postage prepaid, return receipt requested, or delivered by hand, and, if mailed
by registered or
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certified mail, shall be deemed received three (3) days after having been
deposited in a receptacle for United States mail postage prepaid, addressed as
follows:
(a) If to Borrower:
Signature Eyewear
000 X. Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
(b) If to Lender:
Home Loan and Investment Company
000 Xxxxx 0xx Xxxxxx
X.X. Xxx 000
Xxxxx Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
(c) If to Bluebird:
Bluebird Finance Limited
X.X. Xxx 000
Xxxx Xxxx, Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
Attention: The Directors
Any party may change its address for the giving of notice hereunder by
notice so given. Bluebird agrees to provide Borrower and Lender with a current
street address and facsimile number within ten (10) days of the execution of
this Agreement.
8. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term thereof,
such provision shall be fully severable, this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof or thereof, and the remaining provisions hereof or
thereof shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.
9. This Agreement shall be binding upon Bluebird and Borrower, their
Subsidiaries, Affiliates, shareholders, successors and assigns, and shall inure
to the benefit of Lender and its successors and assigns.
10. This Agreement, the Note and the other Loan Documents described
therein, shall be governed by and construed in accordance with the laws of the
State of Colorado (without
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regard to conflicts of law principles) and the laws of the United States
applicable to transactions within such state.
11. BORROWER AND BLUEBIRD HEREBY CONSENT TO THE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF MESA, STATE OF COLORADO AND
IRREVOCABLY AGREES THAT, SUBJECT TO LENDER'S ELECTION, ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. BORROWER AND BLUEBIRD EXPRESSLY
SUBMIT AND CONSENT TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY
DEFENSE OF FORUM NON CONVENIENS. BORROWER AND BLUEBIRD HEREBY WAIVE PERSONAL
SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY
BE MADE UPON BORROWER AND BLUEBIRD BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED TO BORROWER AND BLUEBIRD, AT THE ADDRESS SET FORTH
IN THIS AGREEMENT, THE LOAN DOCUMENTS OR AS LAST PROVIDED TO LENDER BY BORROWER
OR BLUEBIRD AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME
HAS BEEN RECEIVED.
[Signatures on following page]
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IN WITNESS WHEREOF, Bluebird and Borrower have executed this Agreement on
the date first written above.
BORROWER:
SIGNATURE EYEWEAR, INC.,
a California corporation
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Its: Chief Financial Officer
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BLUEBIRD:
BLUEBIRD FINANCE LIMITED,
a company organized under the laws of the British Virgin Islands
By: /s/ Xxx Xxxxx Man
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Name: Xxx Xxxxx Man
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Its: Director
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LENDER:
HOME LOAN AND INVESTMENT COMPANY,
a Colorado corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
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Its: President
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