EXECUTION VERSION
Exhibit 10.109
THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT DATED AS OF THE DATE HEREOF AMONG ECLIPSE BUSINESS CAPITAL LLC (“LENDER”), AND THE KELLOGG TRUSTS (AS DEFINED BELOW) (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “SUBORDINATION AGREEMENT”). EACH HOLDER OR TRANSFEREE OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
THIS SUBORDINATED PROMISSORY NOTE (THIS “NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF EFFECTIVE REGISTRATION UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR THE AVAILABILITY OF AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF. THE ISSUER HEREOF MAY, AS A CONDITION TO EFFECTING ANY TRANSFER HEREOF, REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO IT TO THE EFFECT THAT SUCH TRANSFER DOES NOT VIOLATE SUCH REGISTRATION REQUIREMENTS.
SUBORDINATED PROMISSORY NOTE
$34,000,000.00 January 18, 2023
FOR VALUE RECEIVED, the undersigned, Flooring Affiliated Holdings, LLC, a Delaware limited liability company (“Buyer”), hereby promises to pay to each of the persons listed on Exhibit A (collectively, the “Kellogg Trusts” and each, a “Kellogg Trust”), pursuant to the Purchase Agreement (as defined below), the principal sum set forth opposite each such Kellogg Trust’s name on Exhibit A, which, in the aggregate, amounts to Thirty-Four Million Dollars ($34,000,000.00), together with interest on the unpaid principal balance at the rate and on the terms provided in this Note.
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EXECUTION VERSION
IN WITNESS WHEREOF, Buyer has caused this Note to be duly executed as of the date first written above.
BUYER:
FLOORING AFFILIATED HOLDINGS, LLC
By: ___
Name:
Title:
The undersigned hereby joins for the limited purpose set forth in Section 14 of this Note:
GUARANTOR:
LIVE VENTURES INCORPORATED
By: ___
Name:
Title:
ACKNOWLEDGED AND AGREED:
KELLOGG TRUSTS:
STEPHEN J. KELLOGG REVOCABLE TRUST
DATED APRIL 17, 2015
____________, as trustee of the Stephen J. Kellogg Revocable Trust
Dated April 17, 2015
KAITLYN KELLOGG 2022 IRREVOCABLE TRUST
____________, as trustee of the Kaitlyn Kellogg 2022
Irrevocable Trust
[Signature Page – Subordinated Promissory Note]
AUGUSTUS KELLOGG 2022 IRREVOCABLE TRUST
____________, as trustee of the Augustus Kellogg 2022
Irrevocable Trust
KELLOGG 2022 FAMILY IRREVOCABLE NEVADA TRUST
____________, as trustee of the Kellogg 2022 Family
Irrevocable Nevada Trust
[Signature Page – Subordinated Promissory Note]
Exhibit A
Kellogg Trusts
Name | Amount |
Stephen J. Kellogg Revocable Trust Dated April 17, 2015 | $16,720,359.00 |
Kaitlyn Kellogg 2022 Irrevocable Trust | $1,000,000.00 |
Augustus Kellogg 2022 Irrevocable Trust | $1,000,000.00 |
Kellogg 2022 Family Irrevocable Nevada Trust | $15,279,641.00 |
Total: | $34,000,000.00 |
[Signature Page – Subordinated Promissory Note]