EXHIBIT 10.7
------------
THIRD AMENDMENT TO FORBEARANCE AGREEMENT
----------------------------------------
This Third Amendment to Forbearance Agreement (this "Third Amendment") is
entered into as of June 8 2001, by and among Signature Eyewear, Inc. ("SEI") and
City National Bank ("CNB").
RECITALS:
---------
WHEREAS, SEI and CNB are parties to a certain Forbearance Agreement dated
as of December 18, 2000 (hereinafter defined as the "Forbearance Agreement");
and
WHEREAS, SEI and CNB are parties to a certain Amendment to Forbearance
Agreement dated as of February 28, 2001 (hereinafter defined as the
"Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Second Amendment to
Forbearance Agreement dated as of May 1, 2001 (hereinafter defined as the
"Second Amendment"); and
WHEREAS, SEI has requested that CNB amend certain provisions contained in
the Forbearance Agreement as amended by the Amendment and the Second Amendment;
and
WHEREAS, CNB is willing to so amend the Forbearance Agreement in accordance
with the terms and conditions hereof; and
WHEREAS, all initially capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Forbearance Agreement, as amended
hereby;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1
1. Third Amendment to the Forbearance Agreement.
a. The Definition of "Forbearance Termination Date" contained in
Section 1.2 of the Forbearance Agreement, as amended by Section 1(a) of the
Amendment and Section 1(a) of the Second Amendment, hereby is further amended
and restated in its entirety to read as follows:
"Forbearance Termination Date" means the earlier to occur of (i) the
closing of a Transaction; (ii) August 31, 2001, or (iii) the date upon which the
Forbearance Default occurs.
b. Section 4.1 of the Forbearance Agreement, as amended by Section
1(b) of the Amendment and Section 1(b) of the Second Amendment, is hereby
amended and restated in its entirety to read as follows:
4.1. SEI shall continuously exert its best efforts to close a Transaction
as promptly as possible. Without limiting the generality of the foregoing, SEI
shall circulate draft documentation concerning a Transaction no later than
August 15, 2001, and SEI shall have entered into definitive documentation
evidencing a transaction on or before August 31, 2001. SEI shall promptly
provide to CNB copies of all offers, correspondence or other information
received by SEI or its advisors in connection with any discussions respecting a
Transaction or any sale of assets outside the ordinary course of SEI's business.
SEI shall promptly identify each and every party expressing interest in a
Transaction or a purchase of assets of SEI outside the ordinary course of SEI's
business and disclose to CNB the terms of any proposal, formal or informal,
written or unwritten, respecting a possible Transaction or sale of assets
outside the ordinary course of SEI's business. All information, documentation
and other materials provided to CNB pursuant to or in connection with this
Agreement and relating to a Transaction shall be
2
confidential and shall not be disclosed by CNB to any person or entity, other
than (i) any advisor to CNB in connection with such advisor's rendition of
services to CNB in respect of SEI's indebtedness to CNB, (ii) under compulsion
of legal process, or (iii) in response to legal proceedings initiated by SEI.
Any advisor to CNB who receives such confidential information in accordance with
the foregoing shall be bound by the obligation and undertaking of CNB to
maintain the confidentiality of such information. Any and all documentation
evidencing a sale of assets outside the ordinary course of SEI's business shall
be in form and substance satisfactory to CNB. The Transaction Documents shall
provide for repayment to CNB of the entirety of the Obligations in immediately
available funds upon closing of a Transaction and shall be satisfactory to CNB
as to the time, place and manner of such repayment.
c. Section 4.8 of the Forbearance Agreement, as amended by Section
1(c) of the Amendment and Section 1(c) of the Second Amendment, is hereby
amended and restated in its entirety to read as follows:
4.8 From and after entry into this Agreement until a Forbearance
Termination Date, all collections, revenues and cash inflows of every kind to
SEI shall be applied against the outstanding Revolving Line of Credit each day.
Absent a Forbearance Default, CNB will advance the amount permitted under the
daily Borrowing Base Certificate such that: (a) the outstanding principal amount
of the Obligations shall not exceed $8,104,166.61; and (b) the excess of the
outstanding balance of the Borrower's Loan Account over such permitted amount
does not exceed $571,162.28 or such other amount (w) as may result from
correction of manifest error in data or methodology used in calculation of the
foregoing; (x) as may reflect adjustment mutually acceptable to the parties to
reflect corrected "cross-aging" of receivables due from Eye
3
Care of America, Inc.; (y) as CNB may agree to in writing in its sole
discretion, provided however, that the dollar amounts set forth in (a) and (b)
above shall be reduced by: (i) $150,000 on June 17, 2001; (ii) $250,000 on July
17, 2001; and (iii) $350,000 on August 17, 2001.
d. Section 4.16 of the Forbearance Agreement is hereby added to read
as follows:
4.16 Unless the Obligations shall have been paid in full on or prior to
such date, SEI shall pay to CNB a restructuring fee of $7,500 on July 1, 2001,
and $22,500 on August 1, 2001. Such fee shall be fully earned and nonrefundable
on such dates.
2. Conditions Precedent to the Effectiveness of this Third Amendment. The
effectiveness of this Third Amendment is subject to the fulfillment, to the
satisfaction of CNB and its counsel, of the following conditions:
a. The representations and warranties in this Third Amendment, the
Second Amendment, the Amendment and the Forbearance Agreement as amended by the
Amendment, the Second Amendment and this Third Amendment shall be true and
correct in all material respects on and as of the date hereof, as though made on
such date.
3. Miscellaneous.
a. Headings. Section headings in this Third Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Third Amendment for any other purpose.
4
b. Governing Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
c. Counterparts. This Third Amendment may be executed in any number
of counterparts, and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
d. Continued Effectiveness. The terms of the Loan Agreement and of
each of the other Loan Documents remain unchanged, and all such Loan Documents
shall remain in full force and effect and are hereby confirmed and ratified.
e. No Novation. This Third Amendment shall not be deemed or
construed to be a satisfaction, reinstatement, novation or release of the Second
Amendment, the Amendment, the Forbearance Agreement, the Loan Agreement or any
of the other Loan Documents or, except as expressly provided herein, a waiver by
CNB of any of its rights and remedies under the Second Amendment, the Amendment,
the Forbearance Agreement, the Loan Agreement or any of the other Loan Documents
at law or in equity.
f. Reaffirmation. SEI hereby reaffirms each and every covenant,
condition, obligation, and provision set forth in the Loan Documents.
g. Construction. SEI acknowledges that it has been represented by
its own legal counsel in connection with the Loan Documents, the Forbearance
Agreement, the
5
Amendment, the Second Amendment and this Third Amendment, that it has exercised
independent judgment with respect to the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment and this Third Amendment, and
that it has not relied on CNB or on their counsel for any advice with respect to
the Loan Documents, the Forbearance Agreement, the Amendment, the Second
Amendment or this Third Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be executed as of the date set forth above, by the respective duly authorized
officers.
SIGNATURE EYEWEAR, INC., a California
Corporation
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
CITY NATIONAL BANK, a national banking
association
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
6
FOURTH AMENDMENT TO FORBEARANCE AGREEMENT
-----------------------------------------
This Fourth Amendment to Forbearance Agreement (this "Fourth
Amendment") is entered into as of August 22, 2001, by and among Signature
Eyewear, Inc. ("SEI") and City National Bank ("CNB").
RECITALS:
---------
WHEREAS, SEI and CNB are parties to a certain Forbearance Agreement dated
as of December 18, 2000 (hereinafter defined as the "Forbearance Agreement");
and
WHEREAS, SEI and CNB are parties to a certain Amendment to Forbearance
Agreement dated as of February 28, 2001 (the "Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Second Amendment to
Forbearance Agreement dated as of May 1, 2001 (the "Second Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Third Amendment to
Forbearance Agreement dated as of June 8, 2001 (the "Third Amendment'); and
WHEREAS, SEI has requested that CNB amend certain provisions contained in
the Forbearance Agreement as amended by the Amendment, the Second Amendment, and
the Third Amendment; and
WHEREAS, CNB is willing to so amend the Forbearance Agreement in accordance
with the terms and conditions hereof; and
WHEREAS, all initially capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Forbearance Agreement, as amended
hereby;
1
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Fourth Amendment to the Forbearance Agreement.
a. The Definition of "Forbearance Termination Date" contained in
Section 1.2 of the Forbearance Agreement, as amended by Section 1(a) of the
Amendment, Section 1(a) of the Second Amendment, and Section 1(a) of the Third
Amendment hereby is further amended and restated in its entirety to read as
follows:
"Forbearance Termination Date" means the earlier to occur of (i) the
closing of a Transaction; (ii) October 31, 2001, or (iii) the date upon which
the Forbearance Default occurs.
b. Section 4.1 of the Forbearance Agreement, as amended by Section
1(b) of the Amendment, Section 1(b) of the Second Amendment, and Section 1(b) of
the Third Amendment is hereby amended and restated in its entirety to read as
follows:
4.1. SEI shall continuously exert its best efforts to close a
Transaction as promptly as possible. Without limiting the generality of the
foregoing, SEI shall circulate draft documentation concerning a Transaction no
later than October 15, 2001, and SEI shall have entered into definitive
documentation evidencing a transaction on or before October 31, 2001. SEI shall
promptly provide to CNB copies of all offers, correspondence or other
information received by SEI or its advisors in connection with any discussions
respecting a Transaction or any sale of assets outside the ordinary course of
SEI's business. SEI shall promptly identify each and every party expressing
interest in a Transaction or a purchase of assets of SEI outside the ordinary
course of SEI's business and disclose to CNB the terms of any proposal, formal
or informal, written or unwritten, respecting a possible Transaction or sale of
assets outside the ordinary course of SEI's business. All information,
documentation and other materials provided
2
to CNB pursuant to or in connection with this Agreement and relating to a
Transaction shall be confidential and shall not be disclosed by CNB to any
person or entity, other than (i) any advisor to CNB in connection with such
advisor's rendition of services to CNB in respect of SEI's indebtedness to CNB,
(ii) under compulsion of legal process, or (iii) in response to legal
proceedings initiated by SEI. Any advisor to CNB who receives such confidential
information in accordance with the foregoing shall be bound by the obligation
and undertaking of CNB to maintain the confidentiality of such information. Any
and all documentation evidencing a sale of assets outside the ordinary course of
SEI's business shall be in form and substance satisfactory to CNB. The
Transaction Documents shall provide for repayment to CNB of the entirety of the
Obligations in immediately available funds upon closing of a Transaction and
shall be satisfactory to CNB as to the time, place and manner of such repayment.
c. Section 4.8 of the Forbearance Agreement, as amended by Section
1(c) of the Amendment, Section 1(c) of the Second Amendment, and Section 1(c) of
the Third Amendment is hereby amended and restated in its entirety to read as
follows:
4.8 From and after entry into this Agreement until a Forbearance
Termination Date, all collections, revenues and cash inflows of every kind to
SEI shall be applied against the outstanding Revolving Line of Credit each day.
Absent a Forbearance Default, CNB will advance the amount permitted under the
daily Borrowing Base Certificate such that the outstanding principal amount of
the Obligations shall not exceed $7,354,199.61; provided however, that the
dollar amounts set forth above shall be reduced by: (i) $350,000 on September
17, 2001; and (ii) $350,000 on October 17, 2001; and provided further, however,
that the inventory advance rate used to calculate the Borrowing Base and the
amount permitted to be advanced under the Borrowing Base Certificate shall be
(x) 32% from and after September 17,
3
2001 to and including October 16, 2001; and (y) 27% from and after October 17,
2001, rather than the inventory advance rate of 35% set forth in Section
1.6.1(b) of the Loan Agreement.
d. Section 4.17 of the Forbearance Agreement is hereby added to read
as follows:
4.17 Promptly upon execution of the Fourth Amendment hereto, SEI shall pay
to CNB a restructuring fee of $50,000. Such fee shall be fully earned and
nonrefundable, provided, however, that upon payment in full of the Obligations
prior to the Forbearance Termination Date, CNB shall rebate to SEI a portion of
such fee equal to the lesser of (x) $25,000, and (y) $833.33 times the number of
calendar days between but excluding the date of such payment in full and October
31, 2001.
2. Conditions Precedent to the Effectiveness of this Fourth Amendment.
The effectiveness of this Third Amendment is subject to the fulfillment, to the
satisfaction of CNB and its counsel, of the following conditions:
a. The representations and warranties in this Fourth Amendment, the
Third Amendment, the Second Amendment, the Amendment and the Forbearance
Agreement as amended by the Amendment, the Second Amendment, the Third Amendment
and this Fourth Amendment shall be true and correct in all material respects on
and as of the date hereof, as though made on such date.
3. Miscellaneous.
a. Headings. Section headings in this Fourth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Fourth Amendment for any other purpose.
4
b. Governing Law. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
c. Counterparts. This Fourth Amendment may be executed in any number
of counterparts, and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
d. Continued Effectiveness. The terms of the Loan Agreement and of
each of the other Loan Documents remain unchanged, and all such Loan Documents
shall remain in full force and effect and are hereby confirmed and ratified.
e. No Novation. This Fourth Amendment shall not be deemed or
construed to be a satisfaction, reinstatement, novation or release of the Third
Amendment, the Second Amendment, the Amendment, the Forbearance Agreement, the
Loan Agreement or any of the other Loan Documents or, except as expressly
provided herein, a waiver by CNB of any of its rights and remedies under the
Third Amendment, the Second Amendment, the Amendment, the Forbearance Agreement,
the Loan Agreement or any of the other Loan Documents at law or in equity.
f. Reaffirmation. SEI hereby reaffirms each and every covenant,
condition, obligation, and provision set forth in the Loan Documents.
g. Construction. SEI acknowledges that it has been represented by
its own legal counsel in connection with the Loan Documents, the Forbearance
Agreement, the
5
Amendment, the Second Amendment, the Third Amendment and this Fourth Amendment
that it has exercised independent judgment with respect to the Loan Documents,
the Forbearance Agreement, the Amendment, the Second Amendment, the Third
Amendment and this Fourth Amendment, and that it has not relied on CNB or on
their counsel for any advice with respect to the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment and this
Fourth Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to
be executed as of the date set forth above, by the respective duly authorized
officers.
SIGNATURE EYEWEAR, INC., a California
Corporation
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
CITY NATIONAL BANK, a national banking
association
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
6
FIFTH AMENDMENT TO FORBEARANCE AGREEMENT
----------------------------------------
This Fifth Amendment to Forbearance Agreement (this "Fifth Amendment") is
entered into as of October 22, 2001, by and among Signature Eyewear, Inc.
("SEI") and City National Bank ("CNB").
RECITALS:
---------
WHEREAS, SEI and CNB are parties to a certain Forbearance Agreement dated
as of December 18, 2000 (hereinafter defined as the "Forbearance Agreement");
and
WHEREAS, SEI and CNB are parties to a certain Amendment to Forbearance
Agreement dated as of February 28, 2001 (the "Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Second Amendment to
Forbearance Agreement dated as of May 1, 2001 (the "Second Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Third Amendment to
Forbearance Agreement dated as of June 8, 2001 (the "Third Amendment'); and
WHEREAS, SEI and CNB are parties to a certain Fourth Amendment to
Forbearance Agreement dated as of August 22, 2001 (the "Fourth Amendment"); and
WHEREAS, SEI has requested that CNB amend certain provisions contained in
the Forbearance Agreement as amended by the Amendment, the Second Amendment, and
the Third Amendment; and
WHEREAS, CNB is willing to so amend the Forbearance Agreement in accordance
with the terms and conditions hereof; and
1
WHEREAS, all initially capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Forbearance Agreement, as amended
hereby;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Fifth Amendment to the Forbearance Agreement.
a. The Definition of "Forbearance Termination Date" contained in
Section 1.2 of the Forbearance Agreement, as amended by Section 1(a) of the
Amendment, Section 1(a) of the Second Amendment, Section 1(a) of the Third
Amendment hereby and Section 1(a) of the Fourth Amendment is further amended and
restated in its entirety to read as follows:
"Forbearance Termination Date" means the earlier to occur of (i) the
closing of a Transaction; (ii) December 17, 2001, or (iii) the date upon which
the Forbearance Default occurs.
b. Section 4.1 of the Forbearance Agreement, as amended by Section
1(b) of the Amendment, Section 1(b) of the Second Amendment, Section 1(b) of the
Third Amendment and Section 1(b) of the Fourth Amendment is hereby amended and
restated in its entirety to read as follows:
4.1. SEI shall continuously exert its best efforts to close a
Transaction as promptly as possible. Without limiting the generality of the
foregoing, SEI shall circulate draft documentation concerning a Transaction no
later than November 15, 2001, and SEI shall have entered into definitive
documentation evidencing a transaction on or before November 30, 2001. SEI shall
promptly provide to CNB copies of all offers, correspondence or other
2
information received by SEI or its advisors in connection with any discussions
respecting a Transaction or any sale of assets outside the ordinary course of
SEI's business. SEI shall promptly identify each and every party expressing
interest in a Transaction or a purchase of assets of SEI outside the ordinary
course of SEI's business and disclose to CNB the terms of any proposal, formal
or informal, written or unwritten, respecting a possible Transaction or sale of
assets outside the ordinary course of SEI's business. All information,
documentation and other materials provided to CNB pursuant to or in connection
with this Agreement and relating to a Transaction shall be confidential and
shall not be disclosed by CNB to any person or entity, other than (i) any
advisor to CNB in connection with such advisor's rendition of services to CNB in
respect of SEI's indebtedness to CNB, (ii) under compulsion of legal process, or
(iii) in response to legal proceedings initiated by SEI. Any advisor to CNB who
receives such confidential information in accordance with the foregoing shall be
bound by the obligation and undertaking of CNB to maintain the confidentiality
of such information. Any and all documentation evidencing a sale of assets
outside the ordinary course of SEI's business shall be in form and substance
satisfactory to CNB. The Transaction Documents shall provide for repayment to
CNB of the entirety of the Obligations in immediately available funds upon
closing of a Transaction and shall be satisfactory to CNB as to the time, place
and manner of such repayment.
c. Section 4.8 of the Forbearance Agreement, as amended by Section
1(c) of the Amendment, Section 1(c) of the Second Amendment, Section 1(c) of the
Third Amendment and Section 1(c) of the Fourth Amendment is hereby amended and
restated in its entirety to read as follows:
4.8 From and after entry into this Agreement until a Forbearance
Termination Date, all collections, revenues and cash inflows of every kind to
SEI shall be applied against the
3
outstanding Revolving Line of Credit each day. Absent a Forbearance Default, CNB
will advance the amount permitted under the daily Borrowing Base Certificate
such that the outstanding principal amount of the Obligations shall not exceed
$7,004,199.61; provided however, that the dollar amounts set forth above shall
be reduced by: (i) $175,000 on October 22, 2001; (ii) $100,000 on November 2,
2001; and (iii) $200,000 on November 26, 2001; and provided further, however,
that the inventory advance rate used to calculate the Borrowing Base and the
amount permitted to be advanced under the Borrowing Base Certificate shall be
(x) 30% from and after October 22, 2001 to and including November 25, 2001; and
(y) 27% from and after November 26, 2001; rather than the inventory advance rate
of 35% set forth in Section 1.6.1(b) of the Loan Agreement.
d. Section 4.17 of the Forbearance Agreement is hereby added to read
as follows:
4.17 SEI shall pay to CNB a restructuring fee totaling $38,709.68, which
fee shall be comprised of the following payments: (x) $10,000 on November 5,
2001; (y) $15,000 on November 19, 2001; and (z) $13,709.68 on December 1, 2001.
The payments in subparagraph (x) and (y) shall be fully earned and nonrefundable
upon execution of this Fifth Amendment, and the payment in subparagraph (z)
shall be fully earned and non-refundable if the Obligations have not been paid
in full prior to December 1, 2001.
2. Conditions Precedent to the Effectiveness of this Fifth Amendment.
The effectiveness of this Fifth Amendment is subject to the fulfillment, to the
satisfaction of CNB and its counsel, of the following conditions:
4
a. The representations and warranties in this Fifth Amendment, the
Fourth Amendment, the Third Amendment, the Second Amendment, the Amendment and
the Forbearance Agreement as amended by the Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment and this Fifth Amendment shall be true and
correct in all material respects on and as of the date hereof, as though made on
such date.
3. Miscellaneous.
a. Headings. Section headings in this Fifth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Fifth Amendment for any other purpose.
b. Governing Law. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
c. Counterparts. This Fifth Amendment may be executed in any number
of counterparts, and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
d. Continued Effectiveness. The terms of the Loan Agreement and of
each of the other Loan Documents remain unchanged, and all such Loan Documents
shall remain in full force and effect and are hereby confirmed and ratified.
5
e. No Novation. This Fifth Amendment shall not be deemed or
construed to be a satisfaction, reinstatement, novation or release of the Fourth
Amendment, the Third Amendment, the Second Amendment, the Amendment, the
Forbearance Agreement, the Loan Agreement or any of the other Loan Documents or,
except as expressly provided herein, a waiver by CNB of any of its rights and
remedies under the Fourth Amendment, the Third Amendment, the Second Amendment,
the Amendment, the Forbearance Agreement, the Loan Agreement or any of the other
Loan Documents at law or in equity.
f. Reaffirmation. SEI hereby reaffirms each and every covenant,
condition, obligation, and provision set forth in the Loan Documents.
g. Construction. SEI acknowledges that it has been represented by
its own legal counsel in connection with the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, and this Fifth Amendment that it has exercised independent judgment
with respect to the Loan Documents, the Forbearance Agreement, the Amendment,
the Second Amendment, the Third Amendment, the Fourth Amendment, and this Fifth
Amendment, and that it has not relied on CNB or on their counsel for any advice
with respect to the Loan Documents, the Forbearance Agreement, the Amendment,
the Second Amendment, the Third Amendment, the Fourth Amendment, and this Fifth
Amendment.
6
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to
be executed as of the date set forth above, by the respective duly authorized
officers.
SIGNATURE EYEWEAR, INC., a California
Corporation
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
CITY NATIONAL BANK, a national banking
association
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
7
SIXTH AMENDMENT TO FORBEARANCE AGREEMENT
----------------------------------------
This Sixth Amendment to Forbearance Agreement (this "Sixth Amendment") is
entered into as of December 14, 2001, by and among Signature Eyewear, Inc.
("SEI") and City National Bank ("CNB").
RECITALS:
---------
WHEREAS, SEI and CNB are parties to a certain Forbearance Agreement dated
as of December 18, 2000 (hereinafter defined as the "Forbearance Agreement");
and
WHEREAS, SEI and CNB are parties to a certain Amendment to Forbearance
Agreement dated as of February 28, 2001 (the "Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Second Amendment to
Forbearance Agreement dated as of May 1, 2001 (the "Second Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Third Amendment to
Forbearance Agreement dated as of June 8, 2001 (the "Third Amendment'); and
WHEREAS, SEI and CNB are parties to a certain Fourth Amendment to
Forbearance Agreement dated as of August 22, 2001 (the "Fourth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Fifth Amendment to
Forbearance Agreement dated as of October 22, 2001 (the "Fifth Amendment"); and
WHEREAS, SEI has requested that CNB amend certain provisions contained in
the Forbearance Agreement as amended by the Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, and the Fifth Amendment; and
WHEREAS, CNB is willing to so amend the Forbearance Agreement in accordance
with the terms and conditions hereof; and
1
WHEREAS, all initially capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Forbearance Agreement, as amended
hereby;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Sixth Amendment to the Forbearance Agreement.
a. The Definition of "Forbearance Default" contained in Section 1.2
of the Forbearance Agreement is hereby amended and restated in its entirety to
read as follows:
"Forbearance Default" means (i) any occurrence of events which constituted
an Event of Default other than the Existing Defaults, including, without
limitation, any reoccurrence of events which constituted an Existing Default,
other than an Event of Default arising from (a) breach of the representation and
warranty under Section 5.5 of the Loan Agreement by reason of (x) litigation
pending and disclosed to CNB prior to the date of this Agreement or (y)
litigation commenced against SEI on or after the date hereof which is dismissed
within thirty (30) days of its commencement; or (b) breach of the covenants
contained in Sections 6.2.2., 6.2.3, or 6.10 of the Loan Agreement; (ii) the
failure of SEI to comply with any term, condition or covenant set forth in this
Agreement; (iii) if any representation made by SEI, under or in connection with
this Agreement shall prove to be false as of the date when made; (iv) the filing
of any petition (voluntary or involuntary) under the insolvency or bankruptcy
laws of the United States or any state with respect to SEI; (v) any occurrence
of events which, in the reasonable judgment of CNB, shall have resulted or may
result in a material adverse change in the business, condition (financial or
other), income, operations or prospects of SEI or materially impair the
contemplated benefits of a Transaction to CNB; (vi) if there shall have been
instituted or pending any action, proceeding, claim or counterclaim by any
government or governmental, regulatory or administrative agency or authority or
tribunal or any other person, domestic or foreign, or before any
2
court, authority, agency or tribunal that, in the reasonable judgment of CNB,
materially and adversely affects the business, condition (financial or other),
income, operations or prospects of SEI or materially impairs the contemplated
benefits of a Transaction to CNB; (vii) SEI shall default under any agreement
among the documentation for a Transaction; or (viii) if SEI shall determine not
to pursue a Transaction or shall determine to pursue a Transaction which does
not contemplate payment in full of the Obligations at closing.
b. The Definition of "Forbearance Termination Date" contained in
Section 1.2 of the Forbearance Agreement, as amended by Section 1(a) of the
Amendment, Section 1(a) of the Second Amendment, Section 1(a) of the Third
Amendment, Section 1(a) of the Fourth Amendment and Section 1(a) of the Fifth
Amendment is hereby further amended and restated in its entirety to read as
follows:
"Forbearance Termination Date" means the earlier to occur of (i) the
closing of a Transaction; (ii) March 15, 2002, or (iii) the date upon which the
Forbearance Default occurs.
c. Section 4.1 of the Forbearance Agreement, as amended by Section
1(b) of the Amendment, Section 1(b) of the Second Amendment, Section 1(b) of the
Third Amendment, Section 1(b) of the Fourth Amendment and Section 1(b) of the
Fifth Amendment is hereby amended and restated in its entirety to read as
follows:
4.1. SEI shall continuously exert its best efforts to close a Transaction
as promptly as possible, but in no event later thanMarch 15, 2002. Without
limiting the generality of the foregoing, SEI shall enter into definitive
documentation evidencing a Transaction not later than December 19, 2001.
3
d. Section 4.8 of the Forbearance Agreement, as amended by Section
1(c) of the Amendment, Section 1(c) of the Second Amendment, Section 1(c) of the
Third Amendment, Section 1(c) of the Fourth Amendment and Section 1(c) of the
Fifth Amendment is hereby amended and restated in its entirety to read as
follows:
4.8 From and after entry into this Agreement until a Forbearance
Termination Date, all collections, revenues and cash inflows of every kind to
SEI shall be applied against the outstanding Revolving Line of Credit each day.
Absent a Forbearance Default, CNB will advance the amount permitted under the
daily Borrowing Base Certificate such that the outstanding principal amount of
the Obligations shall not exceed $6,800,000; provided however, that the
inventory advance rate used to calculate the Borrowing Base and the amount
permitted to be advanced under the Borrowing Base Certificate shall be 33% from
and after December 14, 2001; rather than the inventory advance rate of 35% set
forth in Section 1.6.1(b) of the Loan Agreement.
e. Section 4.17 of the Forbearance Agreement is hereby added to read
as follows:
4.17 SEI shall pay to CNB a restructuring fee totaling $75,000, which fee
shall be comprised of the following payments: (x) $25,000 on December 14, 2001;
(y) $25,000 on January 15, 2002; and (z) $25,000 on February 15, 2002. The
payment in subparagraph (x) shall be fully earned and nonrefundable upon
execution of this Sixth Amendment, and the payments in subparagraph (y) and (z)
shall be fully earned and non-refundable if the Obligations have not been paid
in full prior to the date on which each respective payment is due.
2. Conditions Precedent to the Effectiveness of this Sixth Amendment.
The effectiveness of this Sixth Amendment is subject to the fulfillment, to the
satisfaction of CNB and its counsel, of the following conditions:
4
a. The representations and warranties in this Sixth Amendment, the
Fifth Amendment, the Fourth Amendment, the Third Amendment, the Second
Amendment, the Amendment and the Forbearance Agreement as amended by the
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the
Fifth Amendment and this Sixth Amendment shall be true and correct in all
material respects on and as of the date hereof, as though made on such date.
b. Promptly, but in no event later thanDecember 21, 2001, Moulin
International holdings, LTD. ("Moulin") shall secure, from a financial
institution acceptable to CNB, a letter of credit in the amount of (x)
$1,000,000 for the period December 14, 2001 through January 31, 2002, and (y)
$2,000,000 for the period February 1, 2002 to March 22, 2002, for the benefit of
CNB (the "LC"), which shall provide for the immediate draw by CNB of the full
amount of the LC upon the occurrence of a Forbearance Default, and otherwise be
in form and substance satisfactory to CNB and its counsel.
3. Miscellaneous.
a. Headings. Section headings in this Sixth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Sixth Amendment for any other purpose.
b. Governing Law. THIS SIXTH AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
c. Counterparts. This Sixth Amendment may be executed in any number
of counterparts, and by different parties hereto in separate counterparts, each
of which when so executed and
5
delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument.
d. Continued Effectiveness. The terms of the Loan Agreement and of
each of the other Loan Documents remain unchanged, and all such Loan Documents
shall remain in full force and effect and are hereby confirmed and ratified.
e. No Novation. This Sixth Amendment shall not be deemed or
construed to be a satisfaction, reinstatement, novation or release of the Fifth
Amendment, the Fourth Amendment, the Third Amendment, the Second Amendment, the
Amendment, the Forbearance Agreement, the Loan Agreement or any of the other
Loan Documents or, except as expressly provided herein, a waiver by CNB of any
of its rights and remedies under the Fifth Amendment, the Fourth Amendment, the
Third Amendment, the Second Amendment, the Amendment, the Forbearance Agreement,
the Loan Agreement or any of the other Loan Documents at law or in equity.
f. Reaffirmation. SEI hereby reaffirms each and every covenant,
condition, obligation, and provision set forth in the Loan Documents.
g. Construction. SEI acknowledges that it has been represented by
its own legal counsel in connection with the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, and this Sixth Amendment, that it has exercised
independent judgment with respect to the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, and this Sixth Amendment, and that it has not
relied on CNB or on their counsel for any advice with respect to the Loan
Documents, the Forbearance Agreement, the
6
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the
Fifth Amendment or this Sixth Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Amendment to be executed as of the date set forth above, by the respective duly
authorized officers.
SIGNATURE EYEWEAR, INC., a California
Corporation
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
CITY NATIONAL BANK, a national banking
association
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
7
SUPERSEDING SIXTH AMENDMENT TO FORBEARANCE AGREEMENT
----------------------------------------------------
This Superseding Sixth Amendment to Forbearance Agreement (this
"Superseding Sixth Amendment") is entered into as of January 28, 2002, by and
among Signature Eyewear, Inc. ("SEI") and City National Bank ("CNB").
RECITALS:
---------
WHEREAS, SEI and CNB are parties to a certain Forbearance Agreement dated
as of December 18, 2000 (hereinafter defined as the "Forbearance Agreement");
and
WHEREAS, SEI and CNB are parties to a certain Amendment to Forbearance
Agreement dated as of February 28, 2001 (the "Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Second Amendment to
Forbearance Agreement dated as of May 1, 2001 (the "Second Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Third Amendment to
Forbearance Agreement dated as of June 8, 2001 (the "Third Amendment'); and
WHEREAS, SEI and CNB are parties to a certain Fourth Amendment to
Forbearance Agreement dated as of August 22, 2001 (the "Fourth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Fifth Amendment to
Forbearance Agreement dated as of October 22, 2001 (the "Fifth Amendment"); and
WHEREAS, SEI and CNB entered into a certain Sixth Amendment to Forbearance
Agreement dated as of December 14, 2001 (the "Sixth Amendment"), which amendment
is without force or effect by reason of the failure of one or more express
conditions precedent to its effectiveness; and
1
WHEREAS, the Sixth Amendment is superseded by this Superseding Sixth
Amendment; and
WHEREAS, SEI has requested that CNB amend certain provisions contained in
the Forbearance Agreement as amended by the Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, and the Fifth Amendment; and
WHEREAS, CNB is willing to so amend the Forbearance Agreement in accordance
with the terms and conditions hereof; and
WHEREAS, all initially capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Forbearance Agreement, as amended
hereby;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Superseding Sixth Amendment to the Forbearance Agreement.
a. The Definition of "Forbearance Termination Date" contained in
Section 1.2 of the Forbearance Agreement, as amended by Section 1(a) of the
Amendment, Section 1(a) of the Second Amendment, Section 1(a) of the Third
Amendment, Section 1(a) of the Fourth Amendment and Section 1(a) of the Fifth
Amendment is hereby further amended and restated in its entirety to read as
follows:
"Forbearance Termination Date" means the earlier to occur of (i) the
closing of a Transaction; (ii) March 15, 2002, or (iii) the date upon which the
Forbearance Default occurs.
2
b. The Definition of "License Sale" is hereby added to read as
follows: "License Sale" means the transfer of one or more intellectual property
licenses, and all inventory related thereto, to a third party for cash
sufficient in amount to repay the Obligations in full at the closing thereof.
c. The Definition of "License Sale Documents" is hereby added to
read as follows:
"License Sale Documents" means all documentation evidencing or effectuating
the License Sale.
d. Section 4.1 of the Forbearance Agreement, as amended by Section
1(b) of the Amendment, Section 1(b) of the Second Amendment, Section 1(b) of the
Third Amendment, Section 1(b) of the Fourth Amendment and Section 1(b) of the
Fifth Amendment is hereby amended and restated in its entirety to read as
follows:
4.1. SEI shall continuously exert its best efforts to close a Transaction
or License Sale as promptly as possible, but in no event later than March 15,
2002. Without limiting the generality of the foregoing, SEI shall circulate
draft documentation concerning a Transaction or a License Sale no later than
February 15, 2002, and SEI shall have entered into definitive documentation
evidencing a Transaction or a License Sale on or before February 28, 2002. SEI
shall promptly provide to CNB copies of all offers, correspondence or other
information received by SEI or its advisors in connection with any discussions
respecting a Transaction, License Sale or any other sale of assets outside the
ordinary course of SEI's business. SEI shall promptly identify each and every
party expressing interest in a Transaction, License Sale or any other
3
purchase of assets of SEI outside the ordinary course of SEI's business and
disclose to CNB the terms of any proposal, formal or informal, written or
unwritten, respecting a possible Transaction, License Sale or any other sale of
assets outside the ordinary course of SEI's business. All information,
documentation and other materials provided to CNB pursuant to or in connection
with this Agreement and relating to a Transaction, License Sale or any other
sale of assets outside the ordinary course of SEI"s business shall be
confidential and shall not be disclosed by CNB to any person or entity, other
than (i) any advisor to CNB in connection with such advisor's rendition of
services to CNB in respect of SEI's indebtedness to CNB, (ii) under compulsion
of legal process, or (iii) in response to legal proceedings initiated by SEI.
Any advisor to CNB who receives such confidential information in accordance with
the foregoing shall be bound by the obligation and undertaking of CNB to
maintain the confidentiality of such information. Any and all documentation
evidencing a Transaction, License Sale or sale of assets outside the ordinary
course of SEI's business shall be in form and substance satisfactory to CNB. The
Transaction Documents and License Sale Documents shall provide for repayment to
CNB of the entirety of the Obligations in immediately available funds upon
closing of a Transaction or License Sale, respectively, and shall be
satisfactory to CNB as to the time, place and manner of such repayment.
e. Section 4.8 of the Forbearance Agreement, as amended by Section
1(c) of the Amendment, Section 1(c) of the Second Amendment, Section 1(c) of the
Third Amendment, Section 1(c) of the Fourth Amendment and Section 1(c) of the
Fifth Amendment is hereby amended and restated in its entirety to read as
follows:
4
4.8 From and after entry into this Agreement until a Forbearance
Termination Date, all collections, revenues and cash inflows of every kind to
SEI shall be applied against the outstanding Revolving Line of Credit each day.
Absent a Forbearance Default, CNB will advance the amount permitted under the
daily Borrowing Base Certificate such that the outstanding principal amount of
the Obligations shall not exceed $6,000,000; provided however, that dollar
amounts set forth above shall be reduced by $250,000 on February 20, 2002; and
provided further, however, that the inventory advance rate used to calculate the
Borrowing Base and the amount permitted to be advanced under the Borrowing Base
Certificate shall be (i) 32% from and after January 28, 2002, to and including
February 19, 2002; and (ii) 30% from and after February 20, 2002, rather than
the inventory advance rate of 35% set forth in Section 1.6.1(b) of the Loan
Agreement.
f. Section 4.17 of the Forbearance Agreement is hereby added to read
as follows:
4.17 Promptly upon execution of this Superseding Sixth Amendment, SEI shall
pay to CNB a restructuring fee of $75,000, less the amount of $25,000 already
paid to CNB in connection with the Sixth Amendment, which fee shall be fully
earned and nonrefundable upon receipt and payable as follows: (x) $25,000
promptly upon execution of this Superseding Sixth Amendment; and (y) $25,000 on
February 20, 2002.
2. Conditions Precedent to the Effectiveness of this Superseding Sixth
Amendment. The effectiveness of this Superseding Sixth Amendment is subject to
the fulfillment, to the satisfaction of CNB and its counsel, of the following
conditions:
5
a. The representations and warranties in this Superseding Sixth
Amendment, the Fifth Amendment, the Fourth Amendment, the Third Amendment, the
Second Amendment, the Amendment and the Forbearance Agreement as amended by the
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the
Fifth Amendment and this Superseding Sixth Amendment shall be true and correct
in all material respects on and as of the date hereof, as though made on such
date.
3. Miscellaneous.
a. Headings. Section headings in this Superseding Sixth Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Superseding Sixth Amendment for any other purpose.
b. Governing Law. THIS SUPERSEDING SIXTH AMENDMENT SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
c. Counterparts. This Superseding Sixth Amendment may be executed in
any number of counterparts, and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
d. Continued Effectiveness. The terms of the Loan Agreement and of
each of the other Loan Documents remain unchanged, and all such Loan Documents
shall remain in full force and effect and are hereby confirmed and ratified.
6
e. No Novation. This Superseding Sixth Amendment shall not be deemed
or construed to be a satisfaction, reinstatement, novation or release of the
Fifth Amendment, the Fourth Amendment, the Third Amendment, the Second
Amendment, the Amendment, the Forbearance Agreement, the Loan Agreement or any
of the other Loan Documents or, except as expressly provided herein, a waiver by
CNB of any of its rights and remedies under the Fifth Amendment, the Fourth
Amendment, the Third Amendment, the Second Amendment, the Amendment, the
Forbearance Agreement, the Loan Agreement or any of the other Loan Documents at
law or in equity.
f. Reaffirmation. SEI hereby reaffirms each and every covenant,
condition, obligation, and provision set forth in the Loan Documents.
g. Construction. SEI acknowledges that it has been represented by
its own legal counsel in connection with the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, and this Superseding Sixth Amendment, that it
has exercised independent judgment with respect to the Loan Documents, the
Forbearance Agreement, the Amendment, the Second Amendment, the Third Amendment,
the Fourth Amendment, the Fifth Amendment, and this Superseding Sixth Amendment,
and that it has not relied on CNB or on their counsel for any advice with
respect to the Loan Documents, the Forbearance Agreement, the Amendment, the
Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment
or this Superseding Sixth Amendment.
7
IN WITNESS WHEREOF, the parties hereto have caused this Superseding Sixth
Amendment to be executed as of the date set forth above, by the respective duly
authorized officers.
SIGNATURE EYEWEAR, INC., a California
Corporation
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
CITY NATIONAL BANK, a national banking
association
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
8
SEVENTH AMENDMENT TO FORBEARANCE AGREEMENT
------------------------------------------
This Seventh Amendment to Forbearance Agreement (this "Seventh Amendment")
is entered into as of March 15, 2002, by and among Signature Eyewear, Inc.
("SEI") and City National Bank ("CNB").
RECITALS:
---------
WHEREAS, SEI and CNB are parties to a certain Forbearance Agreement dated
as of December 18, 2000 (the "Forbearance Agreement"); and
WHEREAS, SEI and CNB are parties to a certain Amendment to Forbearance
Agreement dated as of February 28, 2001 (the "Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Second Amendment to
Forbearance Agreement dated as of May 1, 2001 (the "Second Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Third Amendment to
Forbearance Agreement dated as of June 8, 2001 (the "Third Amendment'); and
WHEREAS, SEI and CNB are parties to a certain Fourth Amendment to
Forbearance Agreement dated as of August 22, 2001 (the "Fourth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Fifth Amendment to
Forbearance Agreement dated as of October 22, 2001 (the "Fifth Amendment"); and
WHEREAS, SEI and CNB entered into a certain Sixth Amendment to Forbearance
Agreement dated as of December 14, 2001 (the "Sixth Amendment"), which amendment
is without force or effect by reason of the failure of one or more express
conditions precedent to its effectiveness; and
1
WHEREAS, SEI and CNB are parties to a certain Superseding Sixth Amendment
to Forbearance Agreement dated as of January 28, 2002 (the "Superseding Sixth
Amendment"); and
WHEREAS, SEI has requested that CNB amend certain provisions contained in
the Forbearance Agreement as amended by the Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, the Fifth Amendment, and the Superseding
Sixth Amendment; and
WHEREAS, CNB is willing to so amend the Forbearance Agreement in accordance
with the terms and conditions hereof; and
WHEREAS, all initially capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Forbearance Agreement, as amended;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. SEVENTH AMENDMENT TO THE FORBEARANCE AGREEMENT.
a. The Definition of "Forbearance Termination Date" contained in
Section 1.2 of the Forbearance Agreement, as amended by Section 1(a) of the
Amendment, Section 1(a) of the Second Amendment, Section 1(a) of the Third
Amendment, Section 1(a) of the Fourth Amendment, Section 1(a) of the Fifth
Amendment and Section 1(a) of the Superseding Sixth Amendment is hereby further
amended and restated in its entirety to read as follows:
2
"Forbearance Termination Date" means the earlier to occur of (i) the
closing of a Transaction; (ii) March 29, 2002, or (iii) the date upon which the
Forbearance Default occurs.
b. Section 4.1 of the Forbearance Agreement, as amended by Section
1(b) of the Amendment, Section 1(b) of the Second Amendment, Section 1(b) of the
Third Amendment, Section 1(b) of the Fourth Amendment, Section 1(b) of the Fifth
Amendment and Section 1(d) of the Superseding Sixth Amendment is hereby amended
and restated in its entirety to read as follows:
4.1. SEI shall continuously exert its best efforts to close a Transaction
or License Sale as promptly as possible, but in no event later than March 29,
2002. Without limiting the generality of the foregoing, SEI shall circulate
draft documentation concerning a Transaction or a License Sale no later than
March 22, 2002, and SEI shall have entered into definitive documentation
evidencing a Transaction or a License Sale on or before March 27, 2002. SEI
shall promptly provide to CNB copies of all offers, correspondence or other
information received by SEI or its advisors in connection with any discussions
respecting a Transaction, License Sale or any other sale of assets outside the
ordinary course of SEI's business. SEI shall promptly identify each and every
party expressing interest in a Transaction, License Sale or any other purchase
of assets of SEI outside the ordinary course of SEI's business and disclose to
CNB the terms of any proposal, formal or informal, written or unwritten,
respecting a possible Transaction, License Sale or any other sale of assets
outside the ordinary course of SEI's business. All information, documentation
and other materials provided to CNB pursuant to or in connection with this
Agreement and relating to a Transaction, License Sale or any other sale of
assets outside the ordinary course of SEI's business shall be confidential and
shall not be disclosed by CNB to any person or entity, other than (i) any
advisor to CNB in connection with
3
such advisor's rendition of services to CNB in respect of SEI's indebtedness to
CNB, (ii) under compulsion of legal process, or (iii) in response to legal
proceedings initiated by SEI. Any advisor to CNB who receives such confidential
information in accordance with the foregoing shall be bound by the obligation
and undertaking of CNB to maintain the confidentiality of such information. Any
and all documentation evidencing a Transaction, License Sale or sale of assets
outside the ordinary course of SEI's business shall be in form and substance
satisfactory to CNB. The Transaction Documents and License Sale Documents shall
provide for repayment to CNB of the entirety of the Obligations in immediately
available funds upon closing of a Transaction or License Sale, respectively, and
shall be satisfactory to CNB as to the time, place and manner of such repayment.
c. Section 4.17 of the Forbearance Agreement is hereby added to read
as follows:
4.17 Promptly upon execution of this Seventh Amendment, SEI shall pay to
CNB a restructuring fee of $12,500, which fee shall be fully earned and
nonrefundable upon receipt.
2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS SEVENTH AMENDMENT.
The effectiveness of this Seventh Amendment is subject to the fulfillment,
to the satisfaction of CNB and its counsel, of the following conditions:
a. The representations and warranties in this Seventh Amendment, the
Superseding Sixth Amendment, the Fifth Amendment, the Fourth Amendment, the
Third Amendment, the Second Amendment, the Amendment and the Forbearance
Agreement as amended by the Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment, the Fifth Amendment, the Superseding Sixth
Amendment and this Seventh
4
Amendment shall be true and correct in all material respects on and as of the
date hereof, as though made on such date.
3. MISCELLANEOUS.
a. HEADINGS. Section headings in this Seventh Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Seventh Amendment for any other purpose.
b. GOVERNING LAW. THIS SEVENTH AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
c. COUNTERPARTS. This Seventh Amendment may be executed in any
number of counterparts, and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
d. CONTINUED EFFECTIVENESS. The terms of the Loan Agreement and of
each of the other Loan Documents remain unchanged, and all such Loan Documents
shall remain in full force and effect and are hereby confirmed and ratified.
e. NO NOVATION. This Seventh Amendment shall not be deemed or
construed to be a satisfaction, reinstatement, novation or release of the
Superseding Sixth Amendment, the Fifth Amendment, the Fourth Amendment, the
Third Amendment, the Second Amendment, the Amendment, the Forbearance Agreement,
the Loan Agreement or any of the other Loan
5
Documents or, except as expressly provided herein, a waiver by CNB of any of its
rights and remedies under the Superseding Sixth Amendment, the Fifth Amendment,
the Fourth Amendment, the Third Amendment, the Second Amendment, the Amendment,
the Forbearance Agreement, the Loan Agreement or any of the other Loan Documents
at law or in equity.
f. REAFFIRMATION. SEI hereby reaffirms each and every covenant,
condition, obligation, and provision set forth in the Loan Documents.
g. CONSTRUCTION. SEI acknowledges that it has been represented by
its own legal counsel in connection with the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Superseding Sixth Amendment and this Seventh
Amendment, that it has exercised independent judgment with respect to the Loan
Documents, the Forbearance Agreement, the Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, the Fifth Amendment, the Superseding
Sixth Amendment, and this Seventh Amendment, and that it has not relied on CNB
or on their counsel for any advice with respect to the Loan Documents, the
Forbearance Agreement, the Amendment, the Second Amendment, the Third Amendment,
the Fourth Amendment, the Fifth Amendment, the Superseding Sixth Amendment or
this Seventh Amendment.
6
IN WITNESS WHEREOF, the parties hereto have caused this Seventh Amendment
to be executed as of the date set forth above, by the respective duly authorized
officers.
SIGNATURE EYEWEAR, INC., a California
Corporation
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
CITY NATIONAL BANK, a national banking
association
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
7
EIGHTH AMENDMENT TO FORBEARANCE AGREEMENT
-----------------------------------------
This Eighth Amendment to Forbearance Agreement (this "Eighth Amendment") is
entered into as of March 26, 2002, by and among Signature Eyewear, Inc. ("SEI")
and City National Bank ("CNB").
RECITALS:
---------
WHEREAS, SEI and CNB are parties to a certain Forbearance Agreement dated
as of December 18, 2000 (the "Forbearance Agreement"); and
WHEREAS, SEI and CNB are parties to a certain Amendment to Forbearance
Agreement dated as of February 28, 2001 (the "Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Second Amendment to
Forbearance Agreement dated as of May 1, 2001 (the "Second Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Third Amendment to
Forbearance Agreement dated as of June 8, 2001 (the "Third Amendment'); and
WHEREAS, SEI and CNB are parties to a certain Fourth Amendment to
Forbearance Agreement dated as of August 22, 2001 (the "Fourth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Fifth Amendment to
Forbearance Agreement dated as of October 22, 2001 (the "Fifth Amendment"); and
WHEREAS, SEI and CNB entered into a certain Sixth Amendment to Forbearance
Agreement dated as of December 14, 2001 (the "Sixth Amendment"), which amendment
is without force or effect by reason of the failure of one or more express
conditions precedent to its effectiveness; and
1
WHEREAS, SEI and CNB are parties to a certain Superseding Sixth Amendment
to Forbearance Agreement dated as of January 28, 2002 (the "Superseding Sixth
Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Seventh Amendment to
Forbearance Agreement dated as of March 15, 2002 (the "Seventh Amendment"); and
WHEREAS, SEI has requested that CNB amend certain provisions contained in
the Forbearance Agreement as amended by the Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, the Fifth Amendment, the Superseding
Sixth Amendment, and the Seventh Amendment; and
WHEREAS, CNB is willing to so amend the Forbearance Agreement in accordance
with the terms and conditions hereof; and
WHEREAS, all initially capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Forbearance Agreement, as amended;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EIGHTH AMENDMENT TO THE FORBEARANCE AGREEMENT.
a. The Definition of "Forbearance Termination Date" contained in
Section 1.2 of the Forbearance Agreement, as amended by Section 1(a) of the
Amendment, Section 1(a) of the Second Amendment, Section 1(a) of the Third
Amendment, Section 1(a) of the Fourth Amendment, Section 1(a) of the Fifth
Amendment, Section 1(a) of the Superseding
2
Sixth Amendment and Section 1(a) of the Seventh Amendment is hereby further
amended and restated in its entirety to read as follows:
"Forbearance Termination Date" means the earlier to occur of (i) the
closing of a Transaction; (ii) April 12, 2002, or (iii) the date upon which the
Forbearance Default occurs.
b. Section 4.1 of the Forbearance Agreement, as amended by Section
1(b) of the Amendment, Section 1(b) of the Second Amendment, Section 1(b) of the
Third Amendment, Section 1(b) of the Fourth Amendment, Section 1(b) of the Fifth
Amendment, Section 1(d) of the Superseding Sixth Amendment and Section 1(b) of
the Seventh Amendment is hereby amended and restated in its entirety to read as
follows:
4.1. SEI shall continuously exert its best efforts to close a Transaction
or License Sale as promptly as possible, but in no event later than April 12,
2002. Without limiting the generality of the foregoing, SEI shall circulate
draft documentation concerning a Transaction or a License Sale no later than
April 5, 2002, and SEI shall have entered into definitive documentation
evidencing a Transaction or a License Sale on or before April 10, 2002. SEI
shall promptly provide to CNB copies of all offers, correspondence or other
information received by SEI or its advisors in connection with any discussions
respecting a Transaction, License Sale or any other sale of assets outside the
ordinary course of SEI's business. SEI shall promptly identify each and every
party expressing interest in a Transaction, License Sale or any other purchase
of assets of SEI outside the ordinary course of SEI's business and disclose to
CNB the terms of any proposal, formal or informal, written or unwritten,
respecting a possible Transaction, License Sale or any other sale of assets
outside the ordinary course of SEI's business. All information, documentation
and other materials provided to CNB pursuant to or in
3
connection with this Agreement and relating to a Transaction, License Sale or
any other sale of assets outside the ordinary course of SEI's business shall be
confidential and shall not be disclosed by CNB to any person or entity, other
than (i) any advisor to CNB in connection with such advisor's rendition of
services to CNB in respect of SEI's indebtedness to CNB, (ii) under compulsion
of legal process, or (iii) in response to legal proceedings initiated by SEI.
Any advisor to CNB who receives such confidential information in accordance with
the foregoing shall be bound by the obligation and undertaking of CNB to
maintain the confidentiality of such information. Any and all documentation
evidencing a Transaction, License Sale or sale of assets outside the ordinary
course of SEI's business shall be in form and substance satisfactory to CNB. The
Transaction Documents and License Sale Documents shall provide for repayment to
CNB of the entirety of the Obligations in immediately available funds upon
closing of a Transaction or License Sale, respectively, and shall be
satisfactory to CNB as to the time, place and manner of such repayment.
c. Section 4.8 of the Forbearance Agreement, as amended by Section
1(c) of the Amendment, Section 1(c) of the Second Amendment, Section 1(c) of the
Third Amendment, Section 1(c) of the Fourth Amendment, Section 1(c) of the Fifth
Amendment and Section 1(e) of the Superceding Sixth Amendment is hereby amended
and restated in its entirety to read as follows:
4.8 From and after entry into this Agreement until a Forbearance
Termination Date, all collections, revenues and cash inflows of every kind to
SEI shall be applied against the outstanding Revolving Line of Credit each day.
Absent a Forbearance Default, CNB will advance the amount permitted under the
daily Borrowing Base Certificate such that the outstanding principal amount of
the Obligations shall not exceed $5,500,000; provided however,
4
that the inventory advance rate used to calculate the Borrowing Base and the
amount permitted to be advanced under the Borrowing Base Certificate shall be
32% from and after March 26, 2002, rather than the inventory advance rate of 35%
set forth in Section 1.6.1(b) of the Loan Agreement.
d. Section 4.17 of the Forbearance Agreement is hereby added to read
as follows:
4.17 Promptly upon execution of this Eighth Amendment, SEI shall pay to CNB
a restructuring fee of $12,500, which fee shall be fully earned and
nonrefundable upon receipt.
2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS EIGHTH AMENDMENT.
The effectiveness of this Eighth Amendment is subject to the fulfillment, to the
satisfaction of CNB and its counsel, of the following conditions:
a. The representations and warranties in this Eighth Amendment, the
Superseding Sixth Amendment, the Fifth Amendment, the Fourth Amendment, the
Third Amendment, the Second Amendment, the Amendment and the Forbearance
Agreement as amended by the Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment, the Fifth Amendment, the Superseding Sixth
Amendment, the Seventh Amendment and this Eighth Amendment shall be true and
correct in all material respects on and as of the date hereof, as though made on
such date.
b. Promptly, but in no event later than March 28, 2002, SEI shall
prepay the Obligations by transfer to CNB of $500,000 in immediately available
funds, from the proceeds
5
of the sale of certain of its assets (known as the "USA Optical" line of
business) to Xxxxxxxx Optical, or otherwise.
c. Pursuant to Section 4.7 of the Forbearance Agreement, promptly,
but in no event later than March 28, 2002, SEI shall pay to CNB the amount of
all outstanding invoices due for legal services heretofore invoiced by counsel
to CNB.
3. MISCELLANEOUS.
a. HEADINGS. Section headings in this Eighth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Eighth Amendment for any other purpose.
b. GOVERNING LAW. THIS EIGHTH AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
c. COUNTERPARTS. This Eighth Amendment may be executed in any number
of counterparts, and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
d. CONTINUED EFFECTIVENESS. The terms of the Loan Agreement and of
each of the other Loan Documents remain unchanged, and all such Loan Documents
shall remain in full force and effect and are hereby confirmed and ratified.
6
e. NO NOVATION. This Eighth Amendment shall not be deemed or
construed to be a satisfaction, reinstatement, novation or release of the
Seventh Amendment, the Superseding Sixth Amendment, the Fifth Amendment, the
Fourth Amendment, the Third Amendment, the Second Amendment, the Amendment, the
Forbearance Agreement, the Loan Agreement or any of the other Loan Documents or,
except as expressly provided herein, a waiver by CNB of any of its rights and
remedies under the Seventh Amendment, the Superseding Sixth Amendment, the Fifth
Amendment, the Fourth Amendment, the Third Amendment, the Second Amendment, the
Amendment, the Forbearance Agreement, the Loan Agreement or any of the other
Loan Documents at law or in equity.
f. REAFFIRMATION. SEI hereby reaffirms each and every covenant,
condition, obligation, and provision set forth in the Loan Documents.
g. CONSTRUCTION. SEI acknowledges that it has been represented by
its own legal counsel in connection with the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Superseding Sixth Amendment, the Seventh
Amendment and this Eighth Amendment, that it has exercised independent judgment
with respect to the Loan Documents, the Forbearance Agreement, the Amendment,
the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment, the Superseding Sixth Amendment, the Seventh Amendment and this
Eighth Amendment, and that it has not relied on CNB or on their counsel for any
advice with respect to the Loan Documents, the Forbearance Agreement, the
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the
Fifth Amendment, the Superseding Sixth Amendment, the Seventh Amendment or this
Eighth Amendment.
7
IN WITNESS WHEREOF, the parties hereto have caused this Eighth Amendment to
be executed as of the date set forth above, by the respective duly authorized
officers.
SIGNATURE EYEWEAR, INC., a California
Corporation
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
CITY NATIONAL BANK, a national banking
association
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
8
NINTH AMENDMENT TO FORBEARANCE AGREEMENT
----------------------------------------
This Ninth Amendment to Forbearance Agreement (this "Ninth Amendment") is
entered into as of April 12, 2002, by and among Signature Eyewear, Inc. ("SEI")
and City National Bank ("CNB").
RECITALS:
---------
WHEREAS, SEI and CNB are parties to a certain Forbearance Agreement dated
as of December 18, 2000 (the "Forbearance Agreement"); and
WHEREAS, SEI and CNB are parties to a certain Amendment to Forbearance
Agreement dated as of February 28, 2001 (the "Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Second Amendment to
Forbearance Agreement dated as of May 1, 2001 (the "Second Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Third Amendment to
Forbearance Agreement dated as of June 8, 2001 (the "Third Amendment'); and
WHEREAS, SEI and CNB are parties to a certain Fourth Amendment to
Forbearance Agreement dated as of August 22, 2001 (the "Fourth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Fifth Amendment to
Forbearance Agreement dated as of October 22, 2001 (the "Fifth Amendment"); and
WHEREAS, SEI and CNB entered into a certain Sixth Amendment to Forbearance
Agreement dated as of December 14, 2001 (the "Sixth Amendment"), which amendment
is without force or effect by reason of the failure of one or more express
conditions precedent to its effectiveness; and
1
WHEREAS, SEI and CNB are parties to a certain Superseding Sixth Amendment
to Forbearance Agreement dated as of January 28, 2002 (the "Superseding Sixth
Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Seventh Amendment to
Forbearance Agreement dated as of March 15, 2002 (the "Seventh Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Eighth Amendment to
Forbearance Agreement dated as of March 26, 2002 (the "Eighth Amendment"); and
WHEREAS, SEI has requested that CNB amend certain provisions contained in
the Forbearance Agreement as amended by the Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, the Fifth Amendment, the Superseding
Sixth Amendment, the Seventh Amendment, and the Eighth Amendment; and
WHEREAS, CNB is willing to so amend the Forbearance Agreement in accordance
with the terms and conditions hereof; and
WHEREAS, all initially capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Forbearance Agreement, as amended;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. NINTH AMENDMENT TO THE FORBEARANCE AGREEMENT.
a. The Definition of "Forbearance Termination Date" contained in
Section 1.2 of the Forbearance Agreement, as amended by Section 1(a) of the
Amendment, Section 1(a) of the Second Amendment, Section 1(a) of the
2
Third Amendment, Section 1(a) of the Fourth Amendment, Section 1(a) of the Fifth
Amendment, Section 1(a) of the Superseding Sixth Amendment, Section 1(a) of the
Seventh Amendment and Section 1(a) of the Eighth Amendment is hereby further
amended and restated in its entirety to read as follows:
"Forbearance Termination Date" means the earlier to occur of (i) the
closing of a Transaction; (ii) June 3, 2002, or (iii) the date upon which the
Forbearance Default occurs.
b. Section 4.1 of the Forbearance Agreement, as amended by Section
1(b) of the Amendment, Section 1(b) of the Second Amendment, Section 1(b) of the
Third Amendment, Section 1(b) of the Fourth Amendment, Section 1(b) of the Fifth
Amendment, Section 1(d) of the Superseding Sixth Amendment, Section 1(b) of the
Seventh Amendment and Section 1(b) of the Eighth Amendment is hereby amended and
restated in its entirety to read as follows:
4.1. SEI shall continuously exert its best efforts to close a Transaction
or License Sale as promptly as possible, but in no event later than June 3,
2002. Without limiting the generality of the foregoing, SEI shall circulate
draft documentation concerning a Transaction or a License Sale no later than May
20, 2002, and SEI shall have entered into definitive documentation evidencing a
Transaction or a License Sale on or before May 27, 2002. SEI shall promptly
provide to CNB copies of all offers, correspondence or other information
received by SEI or its advisors in connection with any discussions respecting a
Transaction, License Sale or any other sale of assets outside the ordinary
course of SEI's business. SEI shall promptly identify each and every party
expressing interest in a Transaction, License Sale or any other purchase of
assets of SEI outside the ordinary course of SEI's business and disclose to CNB
the terms of any proposal, formal or informal, written or unwritten, respecting
a possible Transaction, License Sale or any other sale of assets outside the
ordinary course of SEI's business. All information,
3
documentation and other materials provided to CNB pursuant to or in connection
with this Agreement and relating to a Transaction, License Sale or any other
sale of assets outside the ordinary course of SEI's business shall be
confidential and shall not be disclosed by CNB to any person or entity, other
than (i) any advisor to CNB in connection with such advisor's rendition of
services to CNB in respect of SEI's indebtedness to CNB, (ii) under compulsion
of legal process, or (iii) in response to legal proceedings initiated by SEI.
Any advisor to CNB who receives such confidential information in accordance with
the foregoing shall be bound by the obligation and undertaking of CNB to
maintain the confidentiality of such information. Any and all documentation
evidencing a Transaction, License Sale or sale of assets outside the ordinary
course of SEI's business shall be in form and substance satisfactory to CNB. The
Transaction Documents and License Sale Documents shall provide for repayment to
CNB of the entirety of the Obligations in immediately available funds upon
closing of a Transaction or License Sale, respectively, and shall be
satisfactory to CNB as to the time, place and manner of such repayment.
c. Section 4.8 of the Forbearance Agreement, as amended by Section
1(c) of the Amendment, Section 1(c) of the Second Amendment, Section 1(c) of the
Third Amendment, Section 1(c) of the Fourth Amendment, Section 1(c) of the Fifth
Amendment, Section 1(e) of the Superceding Sixth Amendment and Section 1(c) of
the Eighth Amendment is hereby amended and restated in its entirety to read as
follows:
4.8 From and after entry into this Agreement until a Forbearance
Termination Date, all collections, revenues and cash inflows of every kind to
SEI shall be applied against the outstanding Revolving Line of Credit each day.
Absent a Forbearance Default, CNB will advance the amount permitted under the
daily Borrowing Base Certificate such that the
4
outstanding principal amount of the Obligations shall not exceed $5,500,000;
provided however, that the dollar amounts set forth above shall be reduced by:
(i) $200,000 on April 22, 2002; and (ii) $200,000 on May 5, 2002; and provided
further, however, that the inventory advance rate used to calculate the
Borrowing Base and the amount permitted to be advanced under the Borrowing Base
Certificate shall be 32% from and after April 12, 2002, rather than the
inventory advance rate of 35% set forth in Section 1.6.1(b) of the Loan
Agreement.
d. Section 4.17 of the Forbearance Agreement is hereby added to read
as follows:
4.17 Promptly upon execution of this Ninth Amendment, SEI shall pay to CNB
a restructuring fee of $42,500, which fee shall be fully earned and
nonrefundable upon receipt.
2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS NINTH AMENDMENT.
The effectiveness of this Ninth Amendment is subject to the fulfillment, to the
satisfaction of CNB and its counsel, of the following conditions:
a. The representations and warranties in this Ninth Amendment, the
Eighth Amendment, the Superseding Sixth Amendment, the Fifth Amendment, the
Fourth Amendment, the Third Amendment, the Second Amendment, the Amendment and
the Forbearance Agreement as amended by the Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, the Fifth Amendment, the Superseding
Sixth Amendment, the Seventh Amendment, the Eighth Amendment and this Ninth
Amendment shall be true and correct in all material respects on and as of the
date hereof, as though made on such date.
5
3. MISCELLANEOUS.
a. HEADINGS. Section headings in this Ninth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Ninth Amendment for any other purpose.
b. GOVERNING LAW. THIS NINTH AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
c. COUNTERPARTS. This Ninth Amendment may be executed in any number
of counterparts, and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
d. CONTINUED EFFECTIVENESS. The terms of the Loan Agreement and of
each of the other Loan Documents remain unchanged, and all such Loan Documents
shall remain in full force and effect and are hereby confirmed and ratified.
e. NO NOVATION. This Ninth Amendment shall not be deemed or
construed to be a satisfaction, reinstatement, novation or release of the Eighth
Amendment, the Seventh Amendment, the Superseding Sixth Amendment, the Fifth
Amendment, the Fourth Amendment, the Third Amendment, the Second Amendment, the
Amendment, the Forbearance Agreement, the Loan Agreement or any of the other
Loan Documents or, except as expressly provided herein, a waiver by CNB of any
of its rights and remedies under the Eighth Amendment, the
6
Seventh Amendment, the Superseding Sixth Amendment, the Fifth Amendment, the
Fourth Amendment, the Third Amendment, the Second Amendment, the Amendment, the
Forbearance Agreement, the Loan Agreement or any of the other Loan Documents at
law or in equity.
f. REAFFIRMATION. SEI hereby reaffirms each and every covenant,
condition, obligation, and provision set forth in the Loan Documents.
g. CONSTRUCTION. SEI acknowledges that it has been represented by
its own legal counsel in connection with the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Superseding Sixth Amendment, the Seventh
Amendment, the Eighth Amendment and this Ninth Amendment, that it has exercised
independent judgment with respect to the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Superseding Sixth Amendment, the Seventh
Amendment, the Eighth Amendment and this Ninth Amendment, and that it has not
relied on CNB or on their counsel for any advice with respect to the Loan
Documents, the Forbearance Agreement, the Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, the Fifth Amendment, the Superseding
Sixth Amendment, the Seventh Amendment, the Eighth Amendment and this Ninth
Amendment.
7
IN WITNESS WHEREOF, the parties hereto have caused this Ninth Amendment to
be executed as of the date set forth above, by the respective duly authorized
officers.
SIGNATURE EYEWEAR, INC., a California
Corporation
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
CITY NATIONAL BANK, a national banking
association
By:
-----------------------------------
Name
---------------------------------
Title
--------------------------------
8
TENTH AMENDMENT TO FORBEARANCE AGREEMENT
----------------------------------------
This Tenth Amendment to Forbearance Agreement (this "Tenth
Amendment") is entered into as of May 31, 2002, by and among Signature Eyewear,
Inc. ("SEI") and City National Bank ("CNB").
RECITALS:
---------
WHEREAS, SEI and CNB are parties to a certain Forbearance Agreement
dated as of December 18, 2000 (the "Forbearance Agreement"); and
WHEREAS, SEI and CNB are parties to a certain Amendment to
Forbearance Agreement dated as of February 28, 2001 (the "Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Second Amendment to
Forbearance Agreement dated as of May 1, 2001 (the "Second Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Third Amendment to
Forbearance Agreement dated as of June 8, 2001 (the "Third Amendment'); and
WHEREAS, SEI and CNB are parties to a certain Fourth Amendment to
Forbearance Agreement dated as of August 22, 2001 (the "Fourth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Fifth Amendment to
Forbearance Agreement dated as of October 22, 2001 (the "Fifth Amendment"); and
WHEREAS, SEI and CNB entered into a certain Sixth Amendment to
Forbearance Agreement dated as of December 14, 2001 (the "Sixth Amendment"),
which amendment is without force or effect by reason of the failure of one or
more express conditions precedent to its effectiveness; and
1
WHEREAS, SEI and CNB are parties to a certain Superseding Sixth
Amendment to Forbearance Agreement dated as of January 28, 2002 (the
"Superseding Sixth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Seventh Amendment to
Forbearance Agreement dated as of March 15, 2002 (the "Seventh Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Eighth Amendment to
Forbearance Agreement dated as of March 26, 2002 (the "Eighth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Ninth Amendment to
Forbearance Agreement dated as of April 12, 2002 (the "Ninth Amendment"); and
WHEREAS, SEI has requested that CNB amend certain provisions
contained in the Forbearance Agreement as amended by the Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Superseding Sixth Amendment, the Seventh Amendment, the Eighth Amendment, and
the Ninth Amendment; and
WHEREAS, CNB is willing to so amend the Forbearance Agreement in
accordance with the terms and conditions hereof; and
WHEREAS, all initially capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Forbearance Agreement, as
amended;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
2
1. TENTH AMENDMENT TO THE FORBEARANCE AGREEMENT.
a. The Definition of "Forbearance Termination Date"
contained in Section 1.2 of the Forbearance Agreement, as amended by Section
1(a) of the Amendment, Section 1(a) of the Second Amendment, Section 1(a) of the
Third Amendment, Section 1(a) of the Fourth Amendment, Section 1(a) of the Fifth
Amendment, Section 1(a) of the Superseding Sixth Amendment, Section 1(a) of the
Seventh Amendment, Section 1(a) of the Eighth Amendment and Section 1(a) of the
Ninth Amendment is hereby further amended and restated in its entirety to read
as follows:
"Forbearance Termination Date" means the earlier to occur of (i) the
closing of a Transaction; (ii) July 8, 2002, or (iii) the date upon which the
Forbearance Default occurs.
b. Section 4.1 of the Forbearance Agreement, as amended by
Section 1(b) of the Amendment, Section 1(b) of the Second Amendment, Section
1(b) of the Third Amendment, Section 1(b) of the Fourth Amendment, Section 1(b)
of the Fifth Amendment, Section 1(d) of the Superseding Sixth Amendment, Section
1(b) of the Seventh Amendment, Section 1(b) of the Eighth Amendment and Section
1(b) of the Ninth Amendment is hereby amended and restated in its entirety to
read as follows:
4.1. SEI shall continuously exert its best efforts to close a
Transaction or License Sale as promptly as possible, but in no event later than
July 8, 2002. Without limiting the generality of the foregoing, SEI shall
circulate draft documentation concerning a Transaction or a License Sale no
later than June 15, 2002, and SEI shall have entered into definitive
documentation evidencing a Transaction or a License Sale on or before July 1,
2002. SEI shall promptly provide to CNB copies of all offers, correspondence or
other information received by SEI or its
3
advisors in connection with any discussions respecting a Transaction, License
Sale or any other sale of assets outside the ordinary course of SEI's business.
SEI shall promptly identify each and every party expressing interest in a
Transaction, License Sale or any other purchase of assets of SEI outside the
ordinary course of SEI's business and disclose to CNB the terms of any proposal,
formal or informal, written or unwritten, respecting a possible Transaction,
License Sale or any other sale of assets outside the ordinary course of SEI's
business. All information, documentation and other materials provided to CNB
pursuant to or in connection with this Agreement and relating to a Transaction,
License Sale or any other sale of assets outside the ordinary course of SEI's
business shall be confidential and shall not be disclosed by CNB to any person
or entity, other than (i) any advisor to CNB in connection with such advisor's
rendition of services to CNB in respect of SEI's indebtedness to CNB, (ii) under
compulsion of legal process, or (iii) in response to legal proceedings initiated
by SEI. Any advisor to CNB who receives such confidential information in
accordance with the foregoing shall be bound by the obligation and undertaking
of CNB to maintain the confidentiality of such information. Any and all
documentation evidencing a Transaction, License Sale or sale of assets outside
the ordinary course of SEI's business shall be in form and substance
satisfactory to CNB. The Transaction Documents and License Sale Documents shall
provide for repayment to CNB of the entirety of the Obligations in immediately
available funds upon closing of a Transaction or License Sale, respectively, and
shall be satisfactory to CNB as to the time, place and manner of such repayment.
c. Section 4.17 of the Forbearance Agreement is hereby
added to read as follows:
4
4.17 Promptly upon execution of this Tenth Amendment, SEI shall pay
to CNB a restructuring fee of $25,000, which fee shall be fully earned and
nonrefundable upon receipt.
2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS TENTH AMENDMENT.
The effectiveness of this Tenth Amendment is subject to the fulfillment, to the
satisfaction of CNB and its counsel, of the following conditions:
a. The representations and warranties in this Tenth
Amendment, the Ninth Amendment, the Eighth Amendment, the Superseding Sixth
Amendment, the Fifth Amendment, the Fourth Amendment, the Third Amendment, the
Second Amendment, the Amendment and the Forbearance Agreement as amended by the
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the
Fifth Amendment, the Superseding Sixth Amendment, the Seventh Amendment, the
Eighth Amendment, the Ninth Amendment and this Tenth Amendment shall be true and
correct in all material respects on and as of the date hereof, as though made on
such date.
3. MISCELLANEOUS.
a. HEADINGS. Section headings in this Tenth Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Tenth Amendment for any other purpose.
b. GOVERNING LAW. THIS TENTH AMENDMENT SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
5
c. COUNTERPARTS. This Tenth Amendment may be executed in
any number of counterparts, and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
d. CONTINUED EFFECTIVENESS. The terms of the Loan Agreement
and of each of the other Loan Documents remain unchanged, and all such Loan
Documents shall remain in full force and effect and are hereby confirmed and
ratified.
e. NO NOVATION. This Tenth Amendment shall not be deemed or
construed to be a satisfaction, reinstatement, novation or release of the Ninth
Amendment, the Eighth Amendment, the Seventh Amendment, the Superseding Sixth
Amendment, the Fifth Amendment, the Fourth Amendment, the Third Amendment, the
Second Amendment, the Amendment, the Forbearance Agreement, the Loan Agreement
or any of the other Loan Documents or, except as expressly provided herein, a
waiver by CNB of any of its rights and remedies under the Ninth Amendment, the
Eighth Amendment, the Seventh Amendment, the Superseding Sixth Amendment, the
Fifth Amendment, the Fourth Amendment, the Third Amendment, the Second
Amendment, the Amendment, the Forbearance Agreement, the Loan Agreement or any
of the other Loan Documents at law or in equity.
f. REAFFIRMATION. SEI hereby reaffirms each and every
covenant, condition, obligation, and provision set forth in the Loan Documents.
g. CONSTRUCTION. SEI acknowledges that it has been
represented by its own legal counsel in connection with the Loan Documents, the
Forbearance Agreement, the Amendment, the Second Amendment, the Third Amendment,
the Fourth Amendment, the Fifth
6
Amendment, the Superseding Sixth Amendment, the Seventh Amendment, the Eighth
Amendment, the Ninth Amendment and this Tenth Amendment, that it has exercised
independent judgment with respect to the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Superseding Sixth Amendment, the Seventh
Amendment, the Eighth Amendment, the Ninth Amendment and this Tenth Amendment,
and that it has not relied on CNB or on their counsel for any advice with
respect to the Loan Documents, the Forbearance Agreement, the Amendment, the
Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment, the Superseding Sixth Amendment, the Seventh Amendment, the Eighth
Amendment, the Ninth Amendment and this Tenth Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Tenth
Amendment to be executed as of the date set forth above, by the respective duly
authorized officers.
SIGNATURE EYEWEAR, INC., a California
Corporation
By:
-------------------------------------
Name
Title
--------------------------------
CITY NATIONAL BANK, a national banking
association
By:
-------------------------------------
Name
Title
--------------------------------
7
ELEVENTH AMENDMENT TO FORBEARANCE AGREEMENT
-------------------------------------------
This Eleventh Amendment to Forbearance Agreement (this "Eleventh
Amendment") is entered into as of July 8, 2002, by and among Signature Eyewear,
Inc. ("SEI") and City National Bank ("CNB").
RECITALS:
---------
WHEREAS, SEI and CNB are parties to a certain Forbearance Agreement dated
as of December 18, 2000 (the "Forbearance Agreement"); and
WHEREAS, SEI and CNB are parties to a certain Amendment to Forbearance
Agreement dated as of February 28, 2001 (the "Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Second Amendment to
Forbearance Agreement dated as of May 1, 2001 (the "Second Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Third Amendment to
Forbearance Agreement dated as of June 8, 2001 (the "Third Amendment'); and
WHEREAS, SEI and CNB are parties to a certain Fourth Amendment to
Forbearance Agreement dated as of August 22, 2001 (the "Fourth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Fifth Amendment to
Forbearance Agreement dated as of October 22, 2001 (the "Fifth Amendment"); and
WHEREAS, SEI and CNB entered into a certain Sixth Amendment to Forbearance
Agreement dated as of December 14, 2001 (the "Sixth Amendment"), which amendment
is without force or effect by reason of the failure of one or more express
conditions precedent to its effectiveness; and
1
WHEREAS, SEI and CNB are parties to a certain Superseding Sixth Amendment
to Forbearance Agreement dated as of January 28, 2002 (the
"Superseding Sixth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Seventh Amendment to
Forbearance Agreement dated as of March 15, 2002 (the "Seventh Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Eighth Amendment to
Forbearance Agreement dated as of March 26, 2002 (the "Eighth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Ninth Amendment to
Forbearance Agreement dated as of April 12, 2002 (the "Ninth Amendment"); and
WHEREAS, SEI and CNB are parties to a certain Tenth Amendment to
Forbearance Agreement dated as of May 31, 2002 (the "Tenth Amendment"); and
WHEREAS, SEI has requested that CNB amend certain provisions contained in
the Forbearance Agreement as amended by the Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, the Fifth Amendment, the Superseding
Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth
Amendment, and the Tenth Amendment; and
WHEREAS, CNB is willing to so amend the Forbearance Agreement in accordance
with the terms and conditions hereof; and
WHEREAS, all initially capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Forbearance Agreement, as amended;
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ELEVENTH AMENDMENT TO THE FORBEARANCE AGREEMENT.
a. The Definition of "Forbearance Termination Date" contained in
Section 1.2 of the Forbearance Agreement, as amended by Section 1(a) of the
Amendment, Section 1(a) of the Second Amendment, Section 1(a) of the Third
Amendment, Section 1(a) of the Fourth Amendment, Section 1(a) of the Fifth
Amendment, Section 1(a) of the Superseding Sixth Amendment, Section 1(a) of the
Seventh Amendment, Section 1(a) of the Eighth Amendment, Section 1(a) of the
Ninth Amendment and Section 1(a) of the Tenth Amendment is hereby further
amended and restated in its entirety to read as follows:
"Forbearance Termination Date" means the earlier to occur of (i) the
closing of a Transaction; (ii) November 8, 2002, or (iii) the date upon which
the Forbearance Default occurs.
b. Section 4.1 of the Forbearance Agreement, as amended by Section
1(b) of the Amendment, Section 1(b) of the Second Amendment, Section 1(b) of the
Third Amendment, Section 1(b) of the Fourth Amendment, Section 1(b) of the Fifth
Amendment, Section 1(d) of the Superseding Sixth Amendment, Section 1(b) of the
Seventh Amendment, Section 1(b) of the Eighth Amendment, Section 1(b) of the
Ninth Amendment and Section 1(b) of the Tenth Amendment is hereby amended and
restated in its entirety to read as follows:
4.1. SEI shall continuously exert its best efforts to close a Transaction
or License Sale as promptly as possible, but in no event later than November 8,
2002. Without limiting the generality of the foregoing, SEI shall circulate
draft documentation concerning a Transaction or a License Sale no later than
October 1, 2002, and SEI shall have entered into definitive
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documentation evidencing a Transaction or a License Sale on or before October
21, 2002. SEI shall promptly provide to CNB copies of all offers, correspondence
or other information received by SEI or its advisors in connection with any
discussions respecting a Transaction, License Sale or any other sale of assets
outside the ordinary course of SEI's business. SEI shall promptly identify each
and every party expressing interest in a Transaction, License Sale or any other
purchase of assets of SEI outside the ordinary course of SEI's business and
disclose to CNB the terms of any proposal, formal or informal, written or
unwritten, respecting a possible Transaction, License Sale or any other sale of
assets outside the ordinary course of SEI's business. All information,
documentation and other materials provided to CNB pursuant to or in connection
with this Agreement and relating to a Transaction, License Sale or any other
sale of assets outside the ordinary course of SEI's business shall be
confidential and shall not be disclosed by CNB to any person or entity, other
than (i) any advisor to CNB in connection with such advisor's rendition of
services to CNB in respect of SEI's indebtedness to CNB, (ii) under compulsion
of legal process, or (iii) in response to legal proceedings initiated by SEI.
Any advisor to CNB who receives such confidential information in accordance with
the foregoing shall be bound by the obligation and undertaking of CNB to
maintain the confidentiality of such information. Any and all documentation
evidencing a Transaction, License Sale or sale of assets outside the ordinary
course of SEI's business shall be in form and substance satisfactory to CNB. The
Transaction Documents and License Sale Documents shall provide for repayment to
CNB of the entirety of the Obligations in immediately available funds upon
closing of a Transaction or License Sale, respectively, and shall be
satisfactory to CNB as to the time, place and manner of such repayment.
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c. Section 4.8 of the Forbearance Agreement, as amended by Section 1(c) of
the Amendment, Section 1(c) of the Second Amendment, Section 1(c) of the Third
Amendment, Section 1(c) of the Fourth Amendment, Section 1(c) of the Fifth
Amendment, Section 1(e) of the Superceding Sixth Amendment, Section 1(c) of the
Eighth Amendment and Section 1 (c) of the Ninth Amendment is hereby amended and
restated in its entirety to read as follows:
4.8 From and after entry into this Agreement until a Forbearance
Termination Date, all collections, revenues and cash inflows of every kind to
SEI shall be applied against the outstanding Revolving Line of Credit each day.
Absent a Forbearance Default, CNB will advance the amount permitted under the
daily Borrowing Base Certificate such that the outstanding principal amount of
the Obligations shall not exceed $5,100,000; provided however, that the dollar
amounts set forth above shall be reduced by: (i) $100,000 on July 15, 2002; (ii)
$150,000 on August 15, 2002; (iii) $225,000 on September 15, 2002; and (iv)
$125,000 on October 15, 2002; and provided further, however, that the inventory
advance rate used to calculate the Borrowing Base and the amount permitted to be
advanced under the Borrowing Base Certificate shall be 32%, rather than the
inventory advance rate of 35% set forth in Section 1.6.1(b) of the Loan
Agreement.
d. The provisions of the Fifth through Tenth Amendments adding a Section
4.17 to the Forbearance Agreement shall be deemed to provide for the addition of
Sections 4.18 through 4.23 thereof. Section 4.24 of the Forbearance Agreement is
hereby added to read as follows:
4.24 SEI shall pay to CNB a total restructuring fee of $100,000 with
respect to the Eleventh Amendment hereto, which fee shall include: (i) a
restructuring fee of $50,000 to be
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made promptly upon execution of the Eleventh Amendment hereto, which fee shall
be fully earned and nonrefundable, provided, however, that upon payment in full
of the Obligations before September 3, 2002, CNB shall rebate to SEI a portion
of such fee equal to $833.33 times the number of calendar days between, but
excluding the date of such payment in full, and September 3, 2002; and (ii) a
restructuring fee of $50,000 to be made on September 3, 2002, which fee shall be
fully earned and nonrefundable, provided, however, that upon payment in full of
the Obligations on or before October 15, 2002, CNB shall rebate to SEI a portion
of such fee equal to $833.33 times the number of calendar days between, but
excluding the date of such payment in full, and November 8, 2002. [If payment in
full of the Obligations is not made on or before October 15, 2002, the entire
$100,000 restructuring fee shall be deemed fully earned and nonrefundable and
not subject to rebate under any circumstances.
2. INVENTORY AUDIT. Pursuant to Section 4.6 of the Forbearance
Agreement, SEI shall cooperate fully with CNB respecting a complete physical
audit of all Inventory commencing on or about July 15, 2002. All of SEI's
expenses for the inventory audit shall be deemed payable by SEI pursuant to
paragraph 4.7 of the Forbearance Agreement.
3. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS ELEVENTH
AMENDMENT. The effectiveness of this Eleventh Amendment is subject to the
fulfillment, to the satisfaction of CNB and its counsel, of the following
conditions:
a. The representations and warranties in this Eleventh Amendment, the Tenth
Amendment, the Ninth Amendment, the Eighth Amendment, the Superseding Sixth
Amendment, the Fifth Amendment, the Fourth Amendment, the Third Amendment, the
Second Amendment, the Amendment and the Forbearance Agreement as amended by the
Amendment, the Second
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Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Superseding Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the
Ninth Amendment, the Tenth Amendment and this Eleventh Amendment shall be true
and correct in all material respects on and as of the date hereof, as though
made on such date.
4. MISCELLANEOUS.
a. HEADINGS. Section headings in this Eleventh Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Eleventh Amendment for any other purpose.
b. GOVERNING LAW. THIS ELEVENTH AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
c. COUNTERPARTS. This Eleventh Amendment may be executed in any
number of counterparts, and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
d. CONTINUED EFFECTIVENESS. The terms of the Loan Agreement and of
each of the other Loan Documents remain unchanged, and all such Loan Documents
shall remain in full force and effect and are hereby confirmed and ratified.
e. NO NOVATION. This Eleventh Amendment shall not be deemed or
construed to be a satisfaction, reinstatement, novation or release of the Tenth
Amendment, the
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Ninth Amendment, the Eighth Amendment, the Seventh Amendment, the Superseding
Sixth Amendment, the Fifth Amendment, the Fourth Amendment, the Third Amendment,
the Second Amendment, the Amendment, the Forbearance Agreement, the Loan
Agreement or any of the other Loan Documents or, except as expressly provided
herein, a waiver by CNB of any of its rights and remedies under the Tenth
Amendment, the Ninth Amendment, the Eighth Amendment, the Seventh Amendment, the
Superseding Sixth Amendment, the Fifth Amendment, the Fourth Amendment, the
Third Amendment, the Second Amendment, the Amendment, the Forbearance Agreement,
the Loan Agreement or any of the other Loan Documents at law or in equity.
f. REAFFIRMATION. SEI hereby reaffirms each and every covenant,
condition, obligation, and provision set forth in the Loan Documents.
g. CONSTRUCTION. SEI acknowledges that it has been represented by
its own legal counsel in connection with the Loan Documents, the Forbearance
Agreement, the Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Superseding Sixth Amendment, the Seventh
Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth Amendment and
this Eleventh Amendment, that it has exercised independent judgment with respect
to the Loan Documents, the Forbearance Agreement, the Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Superseding Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the
Ninth Amendment, the Tenth Amendment and this Eleventh Amendment, and that it
has not relied on CNB or on their counsel for any advice with respect to the
Loan Documents, the Forbearance Agreement, the Amendment, the Second Amendment,
the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Superseding
Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth
Amendment, the Tenth Amendment and this Eleventh Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Eleventh Amendment
to be executed as of the date set forth above, by the respective duly authorized
officers.
SIGNATURE EYEWEAR, INC., a California
Corporation
By:
-----------------------------------
Name
----------------------------------
Title
---------------------------------
CITY NATIONAL BANK, a national banking
association
By:
-----------------------------------
Name
----------------------------------
Title
---------------------------------
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