GUARANTY AGREEMENT
Exhibit
10.4
THIS
GUARANTY AGREEMENT made as of the _____ day of ____________, 2007, is by
BUILDING PARTNERS, INC., a Delaware corporation, with executive offices at
00
Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxxxxx 00000 (the “Guarantor”) to the benefit of
TD BANKNORTH, N.A., a national banking association with a business address
of 0
Xxxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000 (the “Bank”).
WITNESSETH:
WHEREAS,
Guarantor is a wholly owned subsidiary of BRANDPARTNERS GROUP, INC., a Delaware
corporation (“BPG”) and an affiliate of BRANDPARTNERS RETAIL, INC. (“BPR”), a
New Hampshire corporation, each with executive offices at 00 Xxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxxxxx 00000 (BPG and BPR being jointly, severally, and
collectively, the “Borrowers”);
WHEREAS,
the Bank has extended to the Borrowers a revolving line of credit loan in the
principal amount of up to Five Million Dollars ($5,000,000.00) and a term loan
in the principal amount of Two Million Dollars ($2,000,000.00) (collectively,
the “Loans”) in accordance with a Commercial Loan Agreement dated May 5, 2005,
as amended to date (as amended, the “Loan Agreement”), and evidenced by a
Revolving Line of Credit Promissory Note and Term Promissory Note, respectively,
of dated May 5, 2005 in such principal amounts made by the Borrowers payable
to
the order of the Bank (including any subsequent modifications, amendments,
restatements or replacements thereof, collectively, the “Notes”), and related
loan documents between the Borrowers and the Bank (all of the foregoing
collectively, the “Loan Documents”);
WHEREAS,
the obligation of the Bank to continue making the Loans to the Borrowers is
subject to the condition, among others, that the Guarantor shall execute and
deliver this Guaranty Agreement pursuant to a certain Joinder and Amendment
of
Commercial Loan Agreement and Loan Documents of even date herewith by and among
the Borrowers, the Guarantor and GRAFICO INCORPORATED; and
WHEREAS,
the Loans will benefit Guarantor as a wholly-owned subsidiary of BPG and an
affiliate of BPR.
NOW,
THEREFORE, in order to induce the Bank to continue making the Loans to the
Borrowers pursuant to and in accordance with the terms and conditions of the
Loan Agreement, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged by the Guarantor, the Guarantor
hereby covenants and agrees as follows:
1.
Guaranteed
Obligations.
The
Guarantor does hereby unconditionally guarantee to the Bank the due and punctual
payment and performance of the following obligations (individually, a
“Guaranteed Obligation” and collectively, the “Guaranteed
Obligations”):
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(a)
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Principal
balance of, interest on, and other charges related to, the Loans,
when the
same become due and payable, whether on demand or by acceleration
or
otherwise;
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(b)
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Any
and all other obligations of the Borrowers to the Bank under the
Loan
Agreement and other Loan Documents, as the same may be amended, modified,
extended, renewed, replaced or
restated;
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(c)
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Any
and all obligations of the Guarantor hereunder, including, but not
limited
to, all costs and expenses (including reasonable attorneys' fees)
that may
be incurred by the Bank in enforcing this Guaranty or in collecting
all or
any of the Guaranteed Obligations;
and
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(d)
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Any
and all other indebtedness or obligations of the Borrowers to the
Bank
whether now existing or hereafter
arising.
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2.
Demand
by
the Bank.
Upon
the failure of the Borrowers punctually to pay or perform any Guaranteed
Obligation when due, or upon any other event of default specified in the Loan
Documents or herein, the Bank may, at its option, declare all of the Guaranteed
Obligations immediately due and payable and notify Guarantor of the same, and
may thereafter make demand upon the Guarantor, or any Guarantor, in the sole
discretion of the Bank, for the payment or performance of such or all Guaranteed
Obligation(s), and the Guarantor binds and obliges herself to make such payment
or performance forthwith upon such demand.
3.
Waiver
of
Demands, Notices, Diligence, etc.
The
Guarantor hereby assents to all the terms and conditions of the Loan Documents
and the Guaranteed Obligations, and waives, to the fullest extent permitted
by
law, (a) demand for the payment of the principal of any Guaranteed Obligation
or
of any claim for interest or any part thereof (other than the notice and demand
provided for in section 2 hereof); (b) notice of the occurrence of any event
of
default under the Loan Documents or an event of default under any Guaranteed
Obligation; (c) protest of the nonpayment of the principal of any Guaranteed
Obligation or of any claim for interest or any part of any thereof; (d) notice
of presentment, demand and protest; (e) notice of acceptance of any guaranty
herein provided for or of the terms and provisions thereof or hereof by the
Bank; (f) notice of any indulgences or extensions granted to the Borrowers
or
any person or party which shall have assumed the obligations of the Borrowers;
(g) any requirement or diligence of promptness on the part of the Bank in the
enforcement of any of its rights under the provisions of any Guaranteed
Obligations or this Guaranty; (h) any enforcement of any Guaranteed Obligation;
(i) any right which the Guarantor might have to require the Bank to proceed
against any other guarantor of the Guaranteed Obligations or to realize on
any
collateral security for the Guaranteed Obligations; (j) any claims or defenses
which the maker of the Notes and the Loan Documents may have respecting the
genuineness, validity, regularity or enforceability of the Note or the Loan
Documents, and (k) any and all notices of every kind and description which
may
be required to be given by any statute or rule of law in any jurisdiction.
The
waivers set forth in this section 3 shall be effective notwithstanding the
fact
that the any of the Borrowers ceases to exist by reason of its liquidation,
merger, consolidation or otherwise. The Guarantor further warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy,
such
waiver shall be effective only to the extent permitted by law or public
policy.
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If
now or
hereafter (a) Borrowers shall be or become insolvent, and (b) the Guaranteed
Obligations shall not at all times until paid be fully secured by collateral
pledged by the Borrowers, the Guarantor hereby forever waives and relinquishes
in favor of the Bank and the Borrowers, and their respective successors, any
claim or right to payment the Guarantor may now have or hereafter have or
acquire against Borrowers, by subrogation or otherwise, so that at no time
shall
Guarantor become a "creditor" of Borrowers within the meaning of 11 U.S.C.
{547(b), or any successor provision of the Federal bankruptcy laws. Guarantor
further waives and agrees not to assert or claim at any time any deductions
to
the amount guaranteed under this Guaranty for any claim of setoff, counterclaim,
counter demand, recoupment or similar right, whether such claim, demand or
right
may be asserted by the Borrowers, the Guarantor or both.
The
Guarantor also waives any and all rights or defenses arising by reason of (a)
any "one action" or "anti-deficiency" law or any other law which may prevent
Bank from bringing any action, including a claim for deficiency, against the
Guarantor, before or after the Bank's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (b)
any
election of remedies by Bank which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against
Borrowers for reimbursement, including without limitation, any loss of rights
Guarantor may suffer by reason of any law limiting, qualifying, or discharging
the Guaranteed Obligations; (c) any disability or other defense of Borrowers,
of
any other guarantor, or of any other person, or by reason of the cessation
of
Borrowers' liability from any cause whatsoever other than payment in full in
legal tender of the Guaranteed Obligations; (d) any right to claim discharge
of
the Guaranteed Obligations on the basis of unjustified impairment of any
Collateral for the Guaranteed Obligations; (e) any statute of limitations,
if at
any time any action or suit brought by Bank against the Guarantor is commenced
there is outstanding Guaranteed Obligations of Borrowers to the Bank which
are
not barred by any applicable statute of limitations; or (f) any defenses given
to Guarantor at law or in equity other than actual payment and performance
of
the Guaranteed Obligations. If payment is made by Borrowers, whether voluntary
or otherwise, or by any third party, on the Guaranteed Obligations and
thereafter Bank is forced to remit the amount of that payment to Borrowers'
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of creditors, the Guaranteed Obligations
shall be considered unpaid for the purpose of enforcement of this
Guaranty.
4.
Governing
Law; Jurisdiction.
This
Guaranty Agreement shall be construed in accordance with and governed by the
laws of the State of New Hampshire. The Guarantor, to the extent that it may
lawfully do so, hereby consents to the jurisdiction of the courts of the State
of New Hampshire and the United States District Court for the State of New
Hampshire, as well as to the jurisdiction of all courts from which an appeal
may
be taken from such courts, for the purpose of any suit, action or other
proceeding arising out of any of his obligations hereunder or with respect
to
the transactions contemplated hereby, and expressly waives any and all
objections it may have as to venue in any such courts.
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5.
Obligations
of Guarantor Unconditional.
The
obligations of the Guarantor under this Agreement shall be unconditional,
irrespective of the validity, regularity or enforceability of any Guaranteed
Obligation, and shall not be affected by any action taken under any Guaranteed
Obligation in the exercise of any right or remedy therein conferred, or by
any
failure or omission on the part of the Bank to enforce any right given
thereunder or hereunder or any remedy conferred thereby or hereby, or by any
waiver of any term, covenant, agreement or condition of any Guaranteed
Obligation or this Guaranty, or by any release of any security or any other
guaranty at any time existing for the benefit of any Guaranteed Obligation,
or
by any sale, lease or transfer by one or more Guarantor to any person of any
or
all of his properties, or by any action of the Bank granting indulgence or
extension to, or waiving or acquiescing in any default by the Borrowers or
any
Guarantor, or any successor to the Borrowers or any Guarantor or other guarantor
or any person or party which shall have assumed its obligations, or by reason
of
any disability or other defense of the Borrowers or any Guarantor or any
successor to the Borrowers or any Guarantor, or by any modification, alteration,
or by any circumstance whatsoever (with or without notice to or knowledge of
the
Guarantor) which may or might in any manner or to any extent vary the risk
of
the Guarantor hereunder, it being the purpose and intent of the Guarantor that
the obligations of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances and shall not be discharged except by payment
or
performance as herein provided, and then only to the extent of such payment
or
performance.
6.
Subordination
of Claims of Guarantor.
Any
claim against the Borrowers or any Guarantor to which the Guarantor may be
or
become entitled (including, without limitation, claims by subrogation or
otherwise by reason of any payment or performance by the Guarantor in
satisfaction and discharge, in whole or in part, of her obligations under this
Guaranty Agreement) shall be and hereby is made subject and subordinate to
the
prior payment or performance in full of the Guaranteed Obligations.
7.
Notices,
etc.
All
notices, demands and other communications hereunder shall be mailed by
registered or certified mail, return receipt requested, postage prepaid and
shall be effective on the date of the first attempted delivery thereof by the
U.
S. Postal Service, as shown on the registered or certified return receipt for
such notice addressed to the parties at the addresses set forth in the
introductory paragraph hereof, or at such other address as the party to whom
such notice or demand is directed may have designated in writing by like notice
to the other party or parties hereto.
8.
Survival
of Guaranty, etc.
The
Guarantor covenants that this Guaranty Agreement shall be binding upon his
and
his heirs, legal representatives, executors, administrators, and permitted
assigns. This Guaranty Agreement is intended to take effect as a sealed
instrument.
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9.
Guarantor's
Warranties and Representations.
Guarantor represents and warrants to Bank that (a) no representations or
agreements of any kind have been made to Guarantor which would limit or qualify
in any way the terms of this Guaranty; (b) this Guaranty is executed at
Borrowers' request and not at the request of Bank; (c) Guarantor has not and
will not, without the prior written consent of Bank, sell, lease, assign,
encumber, hypothecate, transfer, or otherwise dispose of all or substantially
all of Guarantor's assets; (d) Bank has made no representation to Guarantor
as
to the creditworthiness of Borrowers; (e) upon Bank's request, Guarantor will
provide to Bank financial and credit information in form acceptable to Bank,
and
all such financial information provided to Bank is true and correct in all
material respects and fairly presents the financial condition of Guarantor
as of
the dates thereof, and no material adverse change has occurred in the financial
condition of Guarantor since the date of the financial statements; (f) Guarantor
has established adequate means of obtaining from Borrowers on a continuing
basis
information regarding Borrowers' financial condition; (g) Guarantor agrees
to
keep adequately informed from such means of any facts, events, or circumstances
which might in any way affect Guarantor's risks under this guaranty, and
Guarantor further agrees that, absent a request for information, Bank shall
have
no obligation to disclose to Guarantor any information or documents acquired
by
Bank in the course of its relationship with Borrowers; (h) Guarantor has the
right, power, legal capacity, and authority to enter into and to perform his
obligations under this Guaranty; (i) no approval, consent, authorization, filing
or registration is necessary or required in connection with the Guarantor
entrance into and performance of this Guaranty; and, (j) this Guaranty will
not
result in the breach of or violate any agreement, decree, order or law.
10.
Counterparts.
This
Guaranty Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of the counterparts shall
together constitute one and the same instrument.
11.
Attorneys'
Fees; Expenses.
The
Guarantor agrees to pay upon demand all of the Bank's costs and expenses,
including reasonable attorneys' fees and legal expenses (whether or not there
is
a lawsuit, including attorneys' fees and legal expenses for bankruptcy
proceedings, appeals, and any anticipated post-judgment collection services),
incurred in connection with the enforcement of this Guaranty.
12.
Interpretation.
In all
cases where there is more than one Borrowers or Guarantor, then all words used
in this Guaranty Agreement in the singular shall be deemed to have been used
in
the plural where the context and construction so require, and with respect
to
the parties who are Guarantor their obligations hereunder shall be joint and
several; and where there is more than one Borrower named in this Guaranty
Agreement, or when this Guaranty Agreement is executed by more than one
Guarantor, the words "Borrower" and "Guarantor" respectively shall mean all
and
any one or more of them. The words "Guarantor", "Borrowers", and "Bank" include
the heirs, successors, assigns, and transferees of each of them. Caption
headings in this Guaranty Agreement are for convenience purposes only and are
not to be used to interpret or define the provisions of this Guaranty Agreement.
If a court of competent jurisdiction finds any provision of this Guaranty
Agreement to be invalid or unenforceable as to any person or circumstance,
such
finding shall not render that provision invalid or unenforceable as to any
other
persons or circumstances, and all provisions of this Guaranty Agreement in
all
other respects shall remain valid and enforceable. If any one or more of the
Borrowers or Guarantor are corporations or partnerships, it is not necessary
for
Bank to inquire into the powers of Borrowers or the Guarantor or of the
officers, directors, partners, or agents acting or purporting to act on their
behalf, and any Guaranteed Obligation made or created in reliance upon the
professed exercise of such powers shall be guaranteed under this Guaranty
Agreement.
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13.
Waiver.
The
Bank shall not be deemed to have waived any rights under this Guaranty Agreement
unless such waiver is given in writing and signed by the Bank. No delay or
omission on the part of Bank in exercising any right shall operate as a waiver
of such right or any such other right. A waiver by Bank of a provision of this
Guaranty Agreement shall not prejudice or constitute a waiver of Bank's right
otherwise to demand strict compliance with that provision or any other provision
of this Guaranty Agreement. No prior waiver by Bank, nor any course of dealing
between Bank and the Guarantor, shall constitute a waiver of any Bank's rights
or any of the Guarantor's obligations as to any future transactions. Whenever
the consent of the Bank is required under this Guaranty Agreement, the granting
of such consent by the Bank in any instance shall not constitute continuing
consent to subsequent instances where such consent is required and in all cases
such consent may be granted or withheld at the sole discretion of the
Bank.
14.
Amendment.
No
alteration of or amendment to this Guaranty Agreement shall be effective unless
given in writing and signed by the party or parties sought to be charged or
bound by the alteration or amendment. This Guaranty Agreement, together with
the
Loan Documents constitutes the entire understanding and agreement of the parties
as to the matters set forth in this Guaranty.
15.
Waiver
of
Jury Trial.
THE
GUARANTOR WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE
ARISING UNDER OR RELATING TO THIS GUARANTY AGREEMENT, AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
GUARANTOR
ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AGREEMENT AND
AGREES TO ITS TERMS.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Guarantor has executed this Guaranty Agreement as a sealed
instrument as of the date first above written.
| BUILDING PARTNERS, INC. | |
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| __________________________ | By: _________________________ |
| Witness | |
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Name:
_______________________
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| Title: ________________________ |
The
foregoing Guaranty Agreement is hereby accepted:
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BANKNORTH,
N.A.
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| ______________________________ | By: _________________________ |
| Witness | Xxxx Xxxxxxx |
| Senior Vice President | |
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