REVOLVING LINE OF CREDIT PROMISSORY NOTE
| $5,000,000.00 |
Manchester,
NH
|
May
___,
2005
|
FOR
VALUE
RECEIVED, BRANDPARTNERS GROUP, INC., a Delaware corporation, and BRANDPARTNERS
RETAIL, INC., a New Hampshire corporation, each with executive offices at 00
Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxxxxx 00000 (collectively, the “Borrower”),
jointly and severally promise to pay to the order of BANKNORTH, N. A., a
national banking association with a business address of 0 Xxxxxxxx Xxxx Xxxxx,
Xxxxxxx, Xxx Xxxxxxxxx 00000 (the “Bank”), at such address, or such other place
or places as the holder hereof may designate in writing from time to time
hereafter, the maximum principal sum of FIVE MILLION DOLLARS ($5,000,000.00),
or
so much thereof as may be advanced or readvanced by the Bank to the Borrower
from time to time hereafter (such amounts defined as the “Debit Balance” below),
together with interest as provided for hereinbelow, in lawful money of the
United States of America.
The
Borrower's “Debit Balance” shall mean the debit balance in an account on the
books of the Bank, maintained in the form of a ledger card, computer records
or
otherwise in accordance with the Bank's customary practice and appropriate
accounting procedures wherein there shall be recorded the principal amount
of
all advances made by the Bank to the Borrower, all principal payments made
by
the Borrower to the Bank hereunder, and all other appropriate debits and
credits.
Under
the
Revolving Line of Credit Loan evidenced by this Note (the “Line of Credit”), the
Bank agrees to lend to the Borrower, and the Borrower may borrow, up to the
maximum principal sum provided for in this Note, all in accordance with and
subject to the terms, conditions, and limitations of this Note and the
Commercial Loan Agreement of near or even date herewith entered into by and
between the Borrower and the Bank, and as said agreement may be further amended
from time to time (collectively, as amended, the “Loan Agreement”). The holder
of this Note is entitled to all of the benefits and rights of the Bank under
the
Loan Agreement. However, neither this reference to the Loan Agreement nor any
provision thereof shall impair the absolute and unconditional obligation of
the
Borrower to pay the principal and interest of this Note as herein provided.
Terms not otherwise defined herein shall have the meanings ascribed to them
in
the Loan Agreement.
The
Borrower shall make requests for advances under this Note as provided in the
Loan Agreement. The Borrower agrees that the Bank may make all advances under
this Note by direct deposit to any demand account of the Borrower with the
Bank
or in such other manner as may be provided in the Loan Agreement, and that
all
such advances shall represent binding obligations of the Borrower.
The
Borrower acknowledges that this Note is to evidence the Borrower's obligation
to
pay its Debit Balance, plus interest and any other applicable charges as
determined from time to time, and that it shall continue to do so despite the
occurrence of intervals when no Debit Balance exists because the Borrower has
paid the previous existing Debit Balance in full.
Interest
shall be calculated and accrue daily, based on the actual days elapsed over
a
three hundred sixty (360) day banking year, on the unpaid principal balance
outstanding from time to time under this Note. The unpaid principal balance
outstanding hereunder from time to time shall bear interest at a variable annual
rate equal to the Prime Rate as defined and determined under the Loan Agreement
from time to time. Each time the Prime Rate changes, the interest rate hereunder
shall change contemporaneously with such change in the Prime Rate effective
as
of the opening of business on the date of change. The Borrower acknowledges
that
the Prime Rate is used for reference purposes only as an index and is not
necessarily the lowest interest rate charged by the Bank on commercial loans.
Under and subject to the terms of the Loan Agreement, the Borrower may also
elect to have a LIBOR based rate apply to all or a portion of the outstanding
principal under this Note.
Pending
an Event of Default as provided in the Loan Agreement and herein below, the
Bank
shall extend the Line of Credit through and until the Revolving Line of Credit
Maturity Date (as set forth in the Loan Agreement). Through and until such
date,
the Borrower shall (i) make payments of principal from time to time as provided
in the Loan Agreement and (ii) make payments of interest monthly in arrears
commencing thirty (30) days from the date hereof (or on any day within 30 days
of the date hereof agreed to by the Borrower and the Bank to provide for a
convenient payment date) and continuing on the same date of each month
thereafter through and until the earlier of the acceleration of this Note upon
an Event of Default as provided herein below or the Revolving Line of Credit
Maturity Date, whereupon all principal, accrued and unpaid interest, and any
other charges provided for hereunder, shall be due and payable in full. In
the
event that the Line of Credit is renewed, this Note shall thereafter continue
to
evidence amounts advanced and due under the Line of Credit as
renewed.
This
Note
is being executed and delivered in accordance with the terms of the Loan
Agreement and the documents defined therein as the “Loan Documents”. The payment
and performance of the obligations contained in the Loan Documents are secured
by the collateral granted to the Bank therein (the “Collateral”) and the
security granted to the Bank in the Loan Documents.
At
the
option of the Bank, this Note shall become immediately due and payable in full,
without further demand or notice, if any payment of interest or principal is
not
made when due or upon the occurrence of any other Event of Default under the
terms hereof, under the Loan Agreement, or under any of the other Loan
Documents.
The
holder may impose upon the Borrower a delinquency charge of five percent (5%)
of
the amount of interest not paid on or before the tenth (10th) day after such
installment is due. The entire principal balance hereof, together with accrued
interest, shall after the occurrence and during the continuance of an Event
of
Default under the Loan Agreement or maturity, whether by demand, acceleration
or
otherwise, bear interest at the Prime Rate plus an additional five percent
(5%)
per annum.
The
Borrower agrees that any other property upon or in which the Borrower has
granted or hereafter grants the holder a mortgage or security interest, securing
the payment and performance of any other liability of the Borrower to the
holder, shall also constitute collateral securing this Note. Borrower
hereby grants to Bank, a continuing lien, security interest and right of setoff
as security for all liabilities and obligations to Bank, whether now existing
or
hereafter arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control
of
Bank or any entity under the control of Banknorth Group, Inc. and its successors
and assigns or in transit to any of them. At any time, without demand or notice
(any such notice being expressly waived by Borrower), Bank may setoff the same
or any part thereof and apply the same to any liability or obligation of
Borrower even though unmatured and regardless of the adequacy of any other
collateral securing the Loan. ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE
ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVED.
The
Borrower, and every maker, endorser, or guarantor of this Note, jointly and
severally, agree to pay on demand all reasonable out-of-pocket costs of
collection hereof, including reasonable attorneys' fees, whether or not any
foreclosure or other action is instituted by the holder in its
discretion.
No
delay
or omission on the part of the holder in exercising any right, privilege or
remedy shall impair such right, privilege or remedy or be construed as a waiver
thereof or of any other right, privilege or remedy. No waiver of any right,
privilege or remedy or any amendment to this Note shall be effective unless
made
in writing and signed by the holder. Under no circumstances shall an effective
waiver of any right, privilege or remedy on any one occasion constitute or
be
construed as a bar to the exercise of or a waiver of such right, privilege
or
remedy on any future occasion.
The
acceptance by the holder hereof of any payment after any default hereunder
shall
not operate to extend the time of payment of any amount then remaining unpaid
hereunder or constitute a waiver of any rights of the holder hereof under this
Note.
All
rights and remedies of the holder, whether granted herein or otherwise, shall
be
cumulative and may be exercised singularly or concurrently, and the holder
shall
have, in addition to all other rights and remedies, the rights and remedies
of a
secured party under the Uniform Commercial Code of New Hampshire. The holder
shall have no duty as to the collection or protection of the Collateral or
of
any income thereon, or as to the preservation of any rights pertaining thereto
beyond the safe custody thereof. Surrender of this Note, upon payment or
otherwise, shall not affect the right of the holder to retain the Collateral
as
security for the payment and performance of any other liability of the Borrower
to the holder in accordance with the provisions of the Loan
Documents.
The
Borrower, and every maker, endorser, or guarantor of this Note, hereby jointly
waive, to the fullest extent permitted by law, presentment, notice, protest
and
all other demands and notices and assents (1) to any extension of the time
of
payment or any other indulgence, (2) to any substitution, exchange or release
of
Collateral, and (3) to the release of any other person primarily or secondarily
liable for the obligations evidenced hereby.
This
Note
and the provisions hereof shall be binding upon the Borrower and the Borrower's
heirs, administrators, executors, successors, legal representatives and assigns
and shall inure to the benefit of the holder, the holder's heirs,
administrators, executors, successors, legal representatives and
assigns.
The
word
“holder” as used herein shall mean the payee or endorsee of this Note who is in
possession of it, or the bearer, if this Note is at the time payable to the
bearer.
Upon
receipt of an affidavit of an officer of Bank as to the loss, theft, destruction
or mutilation of this Note, and, in the case of any such loss, theft,
destruction or mutilation, upon cancellation of this Note, Borrower will issue,
in lieu hereof, a replacement note in the same principal amount thereof and
otherwise of like tenor.
This
Note
may not be amended, changed or modified in any respect except by a written
document which has been executed by each party. This Note constitutes a New
Hampshire contract to be governed by the laws of such state and to be paid
and
performed therein.
The
provisions of this Note are expressly subject to the condition that in no event
shall the amount paid or agreed to be paid to the holder hereunder and deemed
interest under applicable law exceed the maximum rate of interest on the unpaid
principal balance hereunder allowed by applicable law, if any, (the “Maximum
Allowable Rate”), which shall mean the law in effect on the date hereof, except
that if there is a change in such law which results in a higher Maximum
Allowable Rate being applicable to this Note, then this Note shall be governed
by such amended law from and after its effective date. In the event that
fulfillment of any provisions of this Note results in the interest rate
hereunder being in excess of the Maximum Allowable Rate, the obligation to
be
fulfilled shall automatically be reduced to eliminate such excess. If
notwithstanding the foregoing, the holder receives an amount which under
applicable law would cause the interest rate hereunder to exceed the Maximum
Allowable Rate, the portion thereof which would be excessive shall automatically
be applied to and deemed a prepayment of the unpaid principal balance hereunder
and not a payment of interest.
XXXXXXXX
AND BANK (BY ACCEPTANCE OF THIS NOTE) MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY
AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER
LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE
OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE
OF
DEALINGS, STATEMENTS OR ACTIONS OF BANK RELATING TO THE ADMINISTRATION OF THE
LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NEITHER PARTY WILL
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, EACH OF BANK
AND
BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. BORROWER CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF BANK HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE
FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR BANK TO
ACCEPT THIS NOTE AND MAKE THE LOAN.
[SIGNATURE
PAGE FOLLOWS]
Executed
and delivered this
day of
May, 2005.
| WITNESSES: | BORROWER: | |
| BRANDPARTNERS GROUP, INC. | ||
| |
|
|
| By: | /s/ | |
|
Signature and Title/Duly Authorized |
||
| BRANDPARTNERS RETAIL, INC. | ||
| |
|
|
| By: | /s/ | |
|
Signature
and Title/Duly Authorized
|
||
