TERM PROMISSORY NOTE
| $2,000,000.00 |
Manchester,
New Hampshire
|
May__,
2005
|
FOR
VALUE
RECEIVED, the undersigned, 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 principal
sum
of TWO MILLION DOLLARS ($2,000,000.00), together with interest, all as provided
for hereinbelow, in lawful money of the United States of America.
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 day of each month thereafter, Borrower
shall make thirty-six (36) consecutive equal monthly payments of principal
each
in the amount of Fifty-five Thousand Five Hundred Fifty-five Dollars and
Fifty-six Cents ($55,555.56), together with monthly payments of accrued and
unpaid interest on the outstanding principal balance at the rate provided
hereinbelow. All remaining outstanding principal and accrued and unpaid interest
shall be due and payable in full on May 4, 2008.
The
outstanding principal balance of this Note shall bear interest at a variable
rate equal to the Prime Rate as defined and determined under the Loan Agreement
(as hereinafter defined). 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, but not less
than all, of the outstanding principal under this Note. Interest shall be
calculated and accrue daily on the basis of actual days elapsed over a three
hundred sixty (360) day banking year.
This
Note
is issued under and subject to the terms, conditions, and limitations of a
certain 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 undersigned to pay the principal and interest on this Note as herein
provided. Any capitalized term used in this Note which is not otherwise
expressly defined herein shall have the meaning ascribed thereto in the Loan
Agreement.
The
Borrower may prepay outstanding principal under this Note only in accordance
with and subject to the terms and conditions of the Loan Agreement and the
payment of fees as provided therein. In the event that any such prepayment
shall
be made by the Borrower, the amount thereof shall be applied first to accrued
interest and thereafter to principal in reverse order of maturity. Partial
prepayments of principal shall not reduce the amount of monthly installments
of
principal hereunder. Any prepayment may also result in payments due from the
Borrower to Bank in accordance with the terms of that certain ISDA Master
Agreement between the Borrower and Bank of near or even date herewith, and
under
any similar agreement between Borrower and Bank pertaining to any interest
rate
swap, cap, floor or hedging transaction.
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”).
At
the
option of the Bank, this Note and all outstanding principal hereunder shall
become immediately due and payable in full, without further demand or notice,
if
any payment due hereunder is not paid when due or upon the occurrence of an
Event of Default under the terms of the Loan Agreement.
The
holder may impose upon the Borrower a delinquency charge of five percent (5%)
of
the amount of any principal or 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 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.
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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 and to act in a commercially reasonable manner.
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 as set forth in 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
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.
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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]
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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
|
||
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