EXHIBIT 10.4
AMENDMENT NO. 1 AND CONSENT
TO
SUBORDINATION AGREEMENT
AMENDMENT NO.1 AND CONSENT (this "Amendment and
Consent"), dated as of February 5, 1997, to the Subordination
Agreement (the "Subordination Agreement") dated as of December
27, 1995 among Chugai Boyeki Company Limited (the "Subordinated
Lender"), Chugai Boyeki (America) Corp., Vicon Industries, Inc.
(the "Borrower") and IBJ Xxxxxxxx Bank & Trust Company (the
"Bank"). Unless otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed thereto in the
Subordination Agreement.
WHEREAS, the Borrower has delivered to the Subordinated
Lender the Subordinated Note;
WHEREAS, the Borrower and the Bank have requested that
the schduled amortization of the principal amount of the
Subordinated Note be amended as provided in the form of the
Secured Promissory Note attached hereto as Exhibit A (the "New
Note"); and
WHEREAS, the Subordinated Lender is willing to so amend
the Subordinated Note on the terms and conditions provided
herein.
NOW, THEREFORE, the parties hereto, being the parties
to the Subordination Agreement, hereby agree as follows:
1. Upon (i) the due execution and delivery by the
borrower to the Subordinated Lender of the New Note and the
payment in full to the Subordinated Lender of the first scheduled
amortization of principal provided thereby and (ii) the due
execution and delivery by the borrower to the Subordinated Lender
of the letter agreement attached hereto as Exhibit B, the
Subordinated Lender shall surrender to the Borrower for
cancellation the Subordinated Note as delivered by the Borrower
as of October 5, 1993 (the "Old Note"). The parties hereto
acknowledge and agree that the New Note shall thereupon replace
the Old Note for all purposes (including, without limitation, as
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the Subordinated Note contemplated by the Subordination
Agreement), and the New Note shall be deemed for all purposes
(including, without limitation, for the purposes of the first
sentence of Section 2 of the Subordination Agreement) to have
been executed and delivered by the Borrower to the Subordinated
Lender as of October 5, 1993.
2. (a) The last two sentences of Section 1 of the
Subordination Agreement shall be deleted and, in lieu thereof,
new sentences shall read as follows:
"Except as provided in the next sentence, in no
event shall the principal of the Subordinated Note
be due and payable (whether by its terms, by
acceleration or otherwise) before July 1, 1999,
except for the scheduled payment on February 5,
1997 of $200,000 and the scheduled payment on
July 1, 1998 of $360,000, PROVIDED, HOWEVER, that
no payment of principal of the Subordinated Note
shall be made by the Borrower to the Subordinated
Lender at any time before July 1, 1999 in the
event that, after giving effect to such payment,
the Available Commitment (as defined in the Credit
Agreement) is less than $250,00. Notwithstanding
the foregoing, principal of the Subordinated Note
shall be permitted to become due and payable upon
the occurrance of any Event of Default
contemplated by paragraphs (e) or (i) of the
definition thereof contained in the Subordinated
Note."
(b) The number "$6,000,000" in Section 7 of the
Subordination Agreement shall be deleted and the number
"$6,500,000" shall be substitued in lieu thereof.
3. The Bank hereby consents to transactions
contemplated by Section 1 hereof, including without limitation
the amendment of the scheduled amortization of the principal
amount of the Subordinated Note to be effected thereby,
notwithstanding anything to the contrary contained in the
Subordination Agreement.
4. Except as provided in this Amendment and Consent,
the Subordination Agreement shall not be amended or modified and
shall remain in full force and effect.
5. This Amendment and Consent shall be governed by
and construed in accordance with the laws of the State of New
York.
6. This Amendment and Consent may be executed in one
or more couterparts, all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the undersigned have executed and
delivered this Amendment and Consent as of the date first written
above.
CHUGAI BOYEKI COMPANY LIMITED
By:
Name: Kazuyoshi Sudu
Title:
CHUGAI BOYEKI (AMERICA) CORP.
By:
Name: Kazuyoshi Sudo
Title:
VICON INDUSTRIES, INC.
By:
Name:
Title:
IBJ XXXXXXXX BANK & TRUST COMPANY
By:
Name:
Title:
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