Exhibit 10.8
WAIVER, dated as of November 6, 2003 (this "Waiver")
BY AND AMONG
(1) BRANDPARTNERS GROUP, INC., a Delaware corporation ("BPG");
(2) XXXXXX BROTHERS INC., a New Hampshire corporation ("Xxxxxx", and together
with BPG, individually a "Company" and collectively, the "Companies"); and
(3) CORPORATE MEZZANINE II, L.P., a British Virgin Islands limited partnership
("CMII").
WHEREAS, the Companies and CMII are parties to a certain Subordinated Note and
Warrant Purchase Agreement dated as of October 22, 2001 as amended by that
certain Amendment No. 1 and Waiver dated as of May 14, 2002 and that certain
Amendment No. 2 and Waiver dated as of August 9, 2002 and as waived by that
certain Waiver, dated as of March 31, 2003 and that certain Waiver, dated as of
June 30, 2003 (the "Purchase Agreement") pursuant to which (i) Xxxxxx has issued
and sold to CMII a subordinated promissory note (the "Note") in the original
principal amount of $5,000,000 with a final maturity of October 22, 2008 and
(ii) BPG has issued to CMII certain warrants for the purchase of 415,000 shares
of common stock of BPG; and
WHEREAS, Xxxxxx has requested that CMII waive certain provisions of the Purchase
Agreement as specified herein, and BPG has joined in the request; and
WHEREAS, CMII is willing to waive certain provisions of the Purchase Agreement,
but only on the terms and conditions set forth in this Waiver.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used in this Waiver shall have the
meanings given them in the Purchase Agreement unless otherwise defined herein.
2. Affirmation of Original Purchase Agreement. Xxxxxx acknowledges that
each of the Purchase Agreement and the Note is a valid and binding obligation of
the Companies, in the case of the Purchase Agreement and of Xxxxxx, in the case
of the Note, enforceable against the Companies or Xxxxxx, as the case may be, in
accordance with its terms.
3. Waivers. Effective as of September 30, 2003, CMII hereby waives
compliance with the covenants set forth in Section 8.3(a), Section 8.3(b),
Section 8.3(c) and Section 8.3(d) of the Purchase Agreement as at, or for the
applicable period ending on September 30, 2003.
Anything herein to the contrary notwithstanding, (i) CMII's waivers
contained in this Section 3 are subject to the satisfaction of the conditions
set forth in Section 4 hereof, (ii) such waivers only apply to the specific
violations and provisions noted above and (iii) Xxxxxx is required to comply
with the provisions noted above, as amended by this Waiver, at all times in the
future.
4. Conditions to CMIII's Obligations. The waivers contained in Section 3
hereof shall not become effective until the date (the "Effective Date") on which
CMII shall have executed and delivered a counterpart of this Waiver and CMII
shall have received a counterpart of this Waiver executed and
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delivered by each Company (and on the Effective Date such waivers shall become
effective as of September 30, 2003).
5. Reimbursement of Expenses. Xxxxxx will pay all out-of-pocket expenses,
costs and charges incurred by CMII (including reasonable fees and disbursements
of counsel) in connection with the preparation and implementation of this
Waiver, and all documents executed.
6. Purchase Agreement and Note to Remain in Force. Except as specifically
provided herein, the Purchase Agreement and the Note shall remain in full force
and effect and are in all respects hereby ratified and affirmed. From and after
the Effective Date, all references in the Purchase Agreement to "this
Agreement", "hereof" or "herein" or the like, and all references in the other
Transaction Documents to the Purchase Agreement, shall mean and refer to the
Purchase Agreement as waived hereby.
7. Successors and Assigns. The Agreement shall inure to the benefit of and
be binding upon the parties hereto and their successors and assigns.
8. Counterparts. This Waiver may be executed in counterparts, each of
which shall constitute an original and all of which, taken together, shall
constitute one and the same agreement.
9. Headings. The headings in this Waiver are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
10. No Implied Waivers. No failure or delay on the part of CMII in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power preclude any
other or further exercise thereof or the exercise of any other right or power
hereunder or under the Original Purchase Agreement or the Note. No modification
or waiver of any provisions of this Waiver shall in any event be effective
unless the same shall be in writing and signed by CMII, and then such
modification, waiver or consent shall be effective only in the specific instance
and for the purpose for which given.
11. Governing Law. This Waiver shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law other than Section 5-1401 of the General Obligations Law of
the State of New York.
12. Jurisdiction; WAIVER OF RIGHT TO JURY TRIAL. Each party to this Waiver
hereby irrevocably agrees that any legal action or proceeding arising out of or
relating to this Waiver or any agreements or transactions contemplated hereby
may be brought in the courts of the State of New York located in New York City
or of the United States of America for the Southern District of New York and
hereby expressly submits to the personal jurisdiction and venue of such courts
for the purposes thereof and expressly waives any claim of improper venue and
any claim that such courts are an inconvenient forum. TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HEREBY WAIVES,
AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
WAIVER OR THE SUBJECT MATTER HEREOF. EACH OF THE PARTIES HERETO ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS TRANSACTION,
AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE
DEALINGS.
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13. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Waiver to be duly executed all
as of the day and year first above written.
BRANDPARTNERS GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
XXXXXX BROTHERS, INC.
By: /s/ Xxxxx X. Xxxxxx.
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Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
CORPORATE MEZZANINE II, L.P.
By: /s/ Hamad Abdoulaziz Al Sagar
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Name: Hamad Abdoulaziz Al Sagar
Title: Hamad Abdoulaziz Al Sagar
