Exhibit 10.111
TENTH AMENDMENT
THIS TENTH AMENDMENT ("Agreement") is dated as of December 28, 2004
between Bank of America Business Capital, as successor-in-interest to Fleet
Capital Corporation ("Lender") and Xxxxxx Brothers, Inc., ("Borrower") and
BrandPartners Group, Inc. ("Guarantor") (Borrower and Guarantor are at times
referred to herein as "Obligor").
RECITALS
WHEREAS, Borrower is engaged in the business of providing fixture
sales, creative services, branch planning and development to the financial
services industry, and related businesses;
WHEREAS, Guarantor owns all or substantially all of the stock of
Borrower, and would directly benefit and gain from any accommodation made by
Lender to Borrower;
WHEREAS, Lender has extended certain credit facilities to Borrower
including pursuant to that certain Loan and Security Agreement dated January 11,
2001 (the "Initial Loan Agreement"), including as amended by that certain
Amendment and Waiver dated May 21, 2001 (the "First Amendment"), that certain
Second Amendment and Waiver Agreement dated October 22, 2001 (the "Second
Amendment"), that certain Third Amendment and Waiver Agreement dated March 29,
2002 (the "Third Amendment"), that certain Fourth Amendment dated as of
September 25, 2002 (the "Fourth Amendment"), that certain Fifth Amendment dated
as of December 20, 2002 (as amended by that certain letter agreement dated
February 12, 2003, the "Fifth Amendment") that certain Sixth Amendment dated as
of March 18, 2003 (the "Sixth Amendment") that certain Seventh Amendment dated
as of August 21, 2003 (the "Seventh Amendment"), that certain Eighth Amendment
dated as of September 29, 2003 (the "Eighth Amendment"), and that certain Ninth
Amendment dated as of November 28, 2003 (the "Ninth Amendment") (the Initial
Loan Agreement as so amended, the Loan Agreement), and as collateral security
therefore, Borrower has granted to Lender liens on and security interests in all
or substantially all of its real and personal property (collectively, the
"Collateral");
WHEREAS, Guarantor has unconditionally and fully guarantied the full
payment and performance of all Borrower's obligations to Lender;
WHEREAS, Borrower has requested that the Lender amend the Loan
Agreement in certain respects as specified herein, and Guarantor has joined in
Borrower's request; and
WHEREAS, Lender is willing to amend certain provisions of the Loan
Agreement, but only on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, based on these premises, and in consideration of the
mutual promises contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower, Guarantor
and Lender hereby agree as follows:
1. ACCURACY OF RECITALS. Borrower and Guarantor acknowledge and agree
that the foregoing Recitals are true and accurate.
2. DEFINITIONS. Capitalized terms not otherwise defined herein shall be
as defined in the Loan Agreement.
3. ACKNOWLEDGEMENT OF OBLIGATIONS.
3.1 BY BORROWER. Borrower hereby acknowledges that it is
unconditionally liable to Lender for the full payment of each of the obligations
set forth at SCHEDULE A hereto and incorporated herein by reference, plus all
charges that may arise under the various documents executed or delivered by
Borrower evidencing or relating to such obligations including, without
limitation, the Loan Agreement (collectively, the "Financing Documents"), plus
all attorneys' fees and costs of collection incurred in connection with such
obligations by Lender (hereinafter all such obligations are referred to as the
"Obligations"), and that, as of the date hereof, Borrower has no defenses,
counterclaims or set-offs with respect to the full and immediate payment of any
or all Obligations.
3.2 BY GUARANTOR. Guarantor hereby acknowledges that it is
unconditionally liable to Lender for the full payment of all Obligations, and
that, as of the date hereof, Guarantor has no defenses, counterclaims or
set-offs with respect to full and immediate payment of any or all obligations.
4. REVOLVING CREDIT LOANS. As of January 1, 2005, Lender agrees to
continue to make Revolving Credit Loans up to but not to exceed $1,750,000 (a
reduction from the existing commitment of $2,000,000) subject to the terms and
conditions of the Loan Agreement, as amended hereby, which sum shall be
permanently reduced to $1,500,000 on April 1, 2005.
5. INTEREST RATE. As of January 1, 2005, the Revolving Credit Loan will
be payable in accordance with the terms of the Loan Agreement for the Revolving
Credit Loan but is amended in respect of the interest rate which shall apply to
it. (The Revolving Credit Loan must be paid in full on or before the Termination
Date). The non-default rate of interest for the Revolving Credit Loan shall,
from January 1, 2005 until it is paid in full, be the Base Rate plus 3.50%.
Interest on the Revolving Credit Loan shall be payable monthly. Interest
payments for the New Term Loan shall be payable monthly from January 1, 2005 at
the Base Rate plus 3.50%.
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6. PRINCIPAL PAYMENTS ON NEW TERM LOAN.
Commencing on January 3, 2005 ("Principal Payment Commencement
Date") and continuing on the first Monday of each month thereafter,
Borrower shall make payments to Lender in immediately available funds,
which funds shall be applied to the principal sum outstanding on the
New Term Loan, (a) through and including June 2005, in the amount of
$100,000, and (b) beginning in July 2005, through and including the
Termination Date, $200,000. The New Term Loan must be paid in full on
or before the Termination Date.
7. AMENDMENT FEES. (a) Borrower acknowledges that, pursuant to the
Seventh Amendment, Borrower remains liable to the Lender for the outstanding
balance of the fully earned amendment fee in the amount of $580,000 (the
"Initial Amendment Fee"). Such Initial Amendment Fee shall be payable by
Borrower to Lender in immediately available funds, as follows: on the first
Monday of each month, (a) for the months January 2005, through and including
June 2005, $25,000 per month, and (b) for the months July 2005, through and
including the Termination Date, $50,000 per month. As an additional fully earned
non-refundable amendment fee, Borrower shall pay to Lender in immediately
available funds, (a) 0.5% of the Obligations as of and on January 3, 2005; plus
(b) 1% of the Obligations as of and on June 30, 2005; and plus (c) 1.5% of the
Obligations as of and on September 30, 2005.
8. AMENDMENT TO LOAN AGREEMENT. Section 4.1 of the Loan Agreement
is deleted in its entirety and replaced with the following:
"TERM OF AGREEMENT". Subject to Lender's right to
cease making Loans to Borrower upon or after the
occurrence of any Default or Event of Default, this
Agreement shall be in effect through and including
December 31, 2005 (the "Original Term") or unless
terminated as provided in Section 4.2 hereof (such
final date being the "Termination Date").
9. COVENANTS. Notwithstanding anything to the contrary contained in the
Loan Agreement or the Financing Documents, from and after the date hereof,
Borrower covenants that:
9.1 AVAILABILITY. Borrower acknowledges that availability
under the Revolving Credit Loan shall be limited by (a) Reserves (as
defined and determined pursuant to Section 1.1.1 of the Loan
Agreement), and (b) the amount of $137,000 on account of the Credit
Card Line to Borrower, (subject to such amount being reduced upon
Lender's reasonable confirmation that its Credit Card Line exposure has
been permanently reduced, in which case the reserve amount shall be
reduced correspondingly), and (c) $50,000 on account of ACH exposure.
9.2 SUBORDINATED DEBT PAYMENTS. From and after the date
hereof, and until payment in full of the Obligations, the Obligor
agrees that the Obligor shall not make any payments of principal and/or
interest on account of the Seller Notes, the Earn-Out (as defined in
the Purchase Documents), the Subordinated Notes and/or Management Fees.
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9.3 EBITDA. Borrower shall have minimum EBITDA of not less
than (a) $1,050,000 for the quarter ending March 31, 2005; (b)
$2,350,000 for the six (6) months ending June 30, 2005; and (c)
$3,150,000 for the nine (9) months ending September 30, 2005.
9.4 FINANCIAL PROJECTIONS. Borrower will deliver to Lender
detailed updated financial projections for calendar year 2005 which
shall include, but not be limited to, a balance sheet, income
statement, and statement of cash flows on a monthly and quarterly
basis, delivered to the Lender on or before March 30, 2005, June 30,
2005, and September 30, 2005.
10. CONDITIONS PRECEDENT. Lender's obligation to enter into this
Agreement and perform its obligations hereunder is subject to the condition
precedent that the Lender shall have received the following documents and other
items, satisfactory to Lender, duly executed where appropriate by authorized
representatives of Borrower (notwithstanding the foregoing, Lender immediately
shall be entitled and shall continue to be entitled to any and all benefits of
this Agreement):
(a) this Agreement; and
(b) evidence that the execution, delivery and performance
of this Agreement by Borrower has been duly
authorized by all necessary corporate action.
11. COVENANTS. REPRESENTATIONS AND WARRANTIES. Obligor hereby makes the
following covenants, representations and warranties:
11.1 AUTHORITY. Obligor is duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its
incorporation and in each jurisdiction where Obligor is required to be
qualified to do business. Obligor is duly authorized to enter into, and
perform its obligations under, this Agreement and the agreements,
instruments and documents contemplated hereby. The execution, delivery
and performance by Obligor of this Agreement will not violate Obligor's
charter or bylaws, any law or any provision of, nor are there any
grounds for acceleration under, any agreement, note, or instrument
which is binding upon Obligor.
11.2 NO MISREPRESENTATIONS. Without limiting any rights or
remedies Lender may have under law or in equity, Obligor agrees that
all statements and information provided by Obligor to Lender pursuant
to, or in connection with, this Agreement or the negotiations leading
to this Agreement, have been and are true, complete and correct in all
material respects, and none of the same contain any omissions of any
fact or matter necessary to keep the statements and information therein
from being misleading.
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11.3 INDEMNITY. Without limiting any rights or remedies Lender
may have under law or in equity, Obligor agrees to indemnify and hold
Lender harmless from and against any and all losses, debts, damages,
liabilities, claims, demands, actions, causes of action, lawsuits,
penalties, judgments, costs and expenses (including, without
limitation, attorneys' fees of counsel of Lender's choice), of every
nature and description, which Lender may sustain or incur, based upon,
arising out of, or in any way relating to this Agreement and I or any
of the other Financing Documents.
12. RELEASE OF CLAIMS
12.1 BY BORROWER. Borrower hereby releases, waives and forever
relinquishes all claims, demands, obligations, liabilities and causes
of action of whatever kind or nature, whether known or unknown, which
it has, may have, or might assert now or in the future against Lender
and/or its participants, officers, directors, employees, agents,
attorneys, accountants, consultants, successors and assigns, directly
or indirectly, arising out of, based upon, or in any manner connected
with (i) any transaction, event, circumstance, action, failure to act
or occurrence of any sort or type, whether known or unknown, prior to
the execution of this Agreement with respect to the Obligations, the
Financing Documents and/or the administration thereof or the
obligations created thereby; (ii) any discussions, commitments,
negotiations, conversations or communications with respect to the
refinancing, restructuring or collection of any Obligations prior to
the execution of this Agreement; or (iii) any thing or matter related
to any of the foregoing. The inclusion of this paragraph in this
Agreement, and the execution of this Agreement by Lender, does not
constitute an acknowledgment or admission by any Lender of liability
for any matter, or a precedent upon which liability may be asserted.
12.2 BY GUARANTOR. Guarantor hereby releases, waives and
forever relinquishes all claims, demands, obligations, liabilities and
causes of action of whatever kind or nature, whether known or unknown,
which it has, may have, or might assert now or in the future against
Lender and/or its participants, officers, directors, employees, agents,
attorneys, accountants, consultants, successors and assigns, directly
or indirectly, arising out of, based upon, or in any manner connected
with (i) any transaction, event, circumstance, action, failure to act
or occurrence of any sort or type, whether known or unknown, prior to
the execution of this Agreement with respect to the Obligations, the
Financing Documents and/or the administration thereof or the
obligations created thereby; (ii) any discussions, commitments,
negotiations, conversations or communications with respect to the
refinancing, restructuring or collection of any obligations prior to
the execution of this Agreement; or (iii) any thing or matter related
to any of the foregoing. The inclusion of this paragraph in this
Agreement, and the execution of this Agreement by Lender, does not
constitute an acknowledgement or admission by any Lender of liability
for any matter, or a precedent upon which liability may be asserted.
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13. GENERAL PROVISIONS.
13.1 INTEGRATION: AMENDMENT: WAIVERS. This Agreement and the
Financing Documents set forth in full all of the terms of the agreement
between the parties and are intended as the full, complete and
exclusive contract governing the relationship between he parties,
superseding all other discussions, promises, representations,
warranties, agreements and the understandings between the parties with
respect thereto. Borrower agrees that the failure of any Obligor in the
performance of any terms or conditions of this Agreement shall
constitute an Event of Default under the Financing Documents (with no
notice or grace whatsoever, notwithstanding anything to the contrary in
the Financing Documents). Obligor acknowledges and agrees that each and
every Event of Default shall be of equal weight and significance, and
equally and fully shall allow Lender to exercise its rights and
remedies hereunder. Obligor acknowledges and agrees that each such
Event of Default has been a material inducement for Lender to enter
into this Agreement and that Lender would be irreparably harmed if
Lender, in any way, were unable to exercise its rights and remedies on
the basis that certain Events of Default (for example, Events of
Default not relating to payment) were of less weight or significance
than certain other Events of Default (for example, Events of Default
relating to payment). No term of this, Agreement or the Financing
Documents may be modified or amended, nor may any rights thereunder be
waived, except in a writing signed by the party against whom
enforcement of the modification, amendment or waiver is sought. Any
waiver of any condition in, or breach of, any of the foregoing in a
particular instance shall not operate as a waiver of other or
subsequent conditions or breaches of the same or a different kind.
Lender's exercise or failure to exercise any rights under any of the
foregoing in a particular instance shall not operate as a waiver of its
right to exercise the same or different rights in subsequent instances.
Except as expressly provided to the contrary in this Agreement, or in
another written agreement, all the terms, conditions, and provisions of
the Financing Documents shall continue in full force and effect. If in
this Agreement's description of an agreement between the parties,
rights and remedies of Lender or obligations of Borrower are described
which also exist under the terms of the other Financing Documents, the
fact that this Agreement may omit or contain a briefer description of
any rights, remedies and obligations shall not be deemed to limit any
of such rights, remedies and obligations contained in the other
Financing Documents. In the event that there shall be any inconsistency
between any provisions of this Agreement and a provision set forth in
any other Financing Document, the provision most favorable to Lender
and the most restrictive as to Obligor shall govern.
13.2. PAYMENT OF EXPENSES. Without limiting the terms of the
Financing Documents, Borrower shall pay all costs and expenses incurred
by or on behalf of Lender (including reasonable attorneys' fees and
expenses) arising under or in connection with this Agreement or the
Financing Documents, including without limitation, in connection with
(i) the negotiation, preparation, execution and delivery of this
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Agreement and the Financing Documents, and any and all consents,
waivers or other documents or instruments relating thereto, (ii) the
filing and recording of any Financing Documents and any other documents
or instruments or further assurances filed or recorded in connection
with any Loan Document, (iii) any other action required in the course
of administration hereof, including, but not limited to, all fees and
expenses arising out of any audits, appraisals, and inspections, and
(iv) the defense or enforcement of the Financing Documents, whether or
not there is any litigation between the parties. All costs and expenses
shall be added to the Obligations, as Lender shall determine, and shall
earn interest at the highest rate provided for under the Financing
Documents.
13.3 NO THIRD PARTY BENEFICIARIES. This Agreement does not
create, and shall not be construed as creating, any rights enforceable
by any person not a party to this Agreement.
13.4 REFERENCE TO "OBLIGOR". All references to "Obligor" in
this Agreement shall mean each and all Obligors (whether Obligor is a
natural person or a legal entity, and regardless of the use of the word
"it" or similar term to refer to Obligor), except where the context
otherwise requires. Each promise, agreement, representation, warranty
and covenant made by Obligor herein is made and given by each Obligor,
jointly and severally, and all rights of Obligor hereunder are enjoyed
with respect to each Obligor, except as expressly set forth herein.
13.5 SEPARABILITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall
nevertheless remain in full force and effect.
13.6 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, which together shall constitute one and the
same agreement.
13.7 TIME OF ESSENCE. Time is of the essence in each of the
obligations of Obligor and with respect to all conditions to be
satisfied by Obligor.
13.8 STATUTE OF LIMITATIONS. Obligor waives the benefit of all
statute(s) of limitations in any action or proceeding based upon or
arising out of this Agreement or the other Financing Documents.
13.9 CONSTRUCTION: VOLUNTARY AGREEMENT: REPRESENTATION BY
COUNSEL. This Agreement has been prepared through the joint efforts of
all the parties. Neither its provisions nor any alleged ambiguity shall
be interpreted or resolved against any party on the ground that such
party's counsel was the draftsman of this Agreement. Each of the
parties declares that such party has carefully read this Agreement and
the agreements, documents and instruments being entered into in
connection herewith and that such party knows the contents thereof and
sign the same freely and voluntarily. The parties hereto acknowledge
that they have been represented in negotiations for and preparation of
this Agreement and the agreements, documents and instrument being
entered into in connection herewith by legal counsel of their own
choosing, and that each of them has read the same and had their
contents fully explained by such counsel and is fully aware of their
contents and legal effect.
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13.10 GOVERNING LAW: FORUM SELECTION. This Agreement has been
entered into and shall be governed by the laws of the State of New
York. As a material part of the consideration to the parties for
entering into this Agreement, each party (i) agrees that, at the option
of the Lender, all actions and proceedings based upon, arising out of
or relating in any way directly or indirectly to, this Agreement, or
the Financing Documents, shall be litigated exclusively in the state
courts of the State of New York or, at Lender's option, the United
States District Court for the Southern District of New York; (ii)
consents to the jurisdiction of any such courts and consent to the
service of process in any such action or proceeding (whether or not
litigated in courts located in the State of New York or the United
States District Court for he Southern District of New York) by personal
delivery or any other method permitted by law; and (iii) waives any and
all rights to transfer or to change the venue of any such action or
proceeding to any court located outside the courts of the State of New
York or the United States District Court for the Southern District of
New York.
13.11 FURTHER ASSURANCES. Obligor agrees to take all further
actions and execute all further documents as Lender may from time to
time reasonably request to carry out the transactions contemplated by
this Agreement.
13.12 NOTICES. All notices, requests and demands to or upon
the respective parties hereto shall be given in accordance with the
Financing Documents.
13.13 MUTUAL WAIVER OF RIGHT TO JURY TRIAL. LENDER AND OBLIGOR
EACH HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (I)
THIS AGREEMENT, OR ANY OF THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS
REFERRED TO HEREIN; OR (II) ANY OTHER PRESENT OR FUTURE INSTRUMENT OR
AGREEMENT BETWEEN OR AMONG THEM; OR (III) ANY CONDUCT, ACTS OR
OMISSIONS OF LENDER OR OBLIGOR OR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH THEM;
IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the date first
written above.
BANK OF AMERICA BUSINESS CAPITAL XXXXXX BROTHERS, INC.
By: _______________________ By:_________________________
Name: _______________________ Name: ______________________
Title: _________________________ Title: _____________________
BRANDPARTNERS GROUP, INC.
By:_________________________
Name: ______________________
Title:______________________
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SCHEDULE A
(Schedule of Obligations)
As of close of business on December 27, 2004, the Obligations
outstanding with respect to the Loans were as follows:
Loan Principal Balance
A. $2,000,000 Revolving $ 0
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Credit Loan
B. $4,000,000 (New) Term Loan $ 3,300,000
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PLUS, as to each Loan, any and all interest, expenses, fees, costs and other
charges accrued and accruing under the Financing Documents or this Agreement.
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