Exhibit 10.21
FOURTH AMENDMENT
THIS FOURTH AMENDMENT ("Agreement") is dated as of September 25, 2002
between 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 "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") and that
certain Third Amendment and Waiver Agreement dated March 29, 2002 (the "Third
Amendment") 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 of 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:
Accuracy of Recitals. Borrower and Guarantor acknowledge and agree that
the foregoing Recitals are true and accurate.
Definitions. Capitalized terms not otherwise defined herein shall be as
defined in the Loan Agreement.
Acknowledgment of Obligations.
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
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limitation, the Loan Agreement, as amended by the First Amendment, the Second
Amendment, and the Third Amendment (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.
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.
Revolving Credit Loans. Lender agrees to continue to make Revolving Credit
Loans up to but not to exceed $6,000,000 subject to the terms and conditions of
the Loan Agreement, as amended.
Amendment Fee. Borrower acknowledges that, pursuant to the Third
Amendment, Borrower remains liable to the Lender for the Amendment Fee in the
amount of $700,000 and such Amendment Fee shall be payable by Borrower to Lender
upon the earlier of (a) the Termination Date, or (b) in installments as follows:
October 7, 2002 $15,000
October 21, 2003 $15,000
November 4, 2002 $15,000
November 18, 2002 $15,000
December 2, 2002 $290,000
Covenants. Notwithstanding anything to the contrary contained in the Loan
Agreement or the Financing Documents, from and after the date hereof, Borrower
covenants that:
Minimum Availability. Borrower, at all times, shall maintain
availability of not less than $300,000. "Availability" means $6,000,000 minus
(a) the amount of outstanding Revolving Credit Loans, and (b) Reserves (as
defined and determined pursuant to Section 1.1.1 of the Loan Agreement).
Subordinated Debt Payments. From and after the date hereof, the
Obligor agrees that effective as of the date of this Agreement and continuing
through and until all of the Obligations are repaid in full in cash (including,
without limitation, all Lender's fees and expenses), 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, except that, if no Default or Event of Default has occurred,
Borrower may pay, on account of the Subordinated Notes, $150,000 on each of
September 30, 2002, December 31, 2002 and March 31, 2003.
Overadvances. From and after the date hereof, Borrower shall not
request and the Lender shall have no obligation to make any Overadvance and
Borrower shall not permit any
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Overadvance to be outstanding. Failure to comply with the foregoing shall
constitute an Event of Default under this Agreement and the Financing Documents
without any notice or grace whatsoever.
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):
this Agreement; and
evidence that the execution, delivery and performance of this
Agreement by Borrower has been duly authorized by all necessary
corporate action.
Conditions Subsequent. The effectiveness of this Agreement and Lender's
obligations to perform its obligations hereunder are subject to the condition
subsequent that the Lender shall receive, on or before October 25, 2002, a
landlord waiver and consent, in a form and substance satisfactory to Lender in
its sole discretion, in connection with that certain premises identified as 00
Xxxxxxxxxx Xxxxx, Xxxxx, Xxx Xxxxxxxxx 00000. Upon Borrower's failure to timely
satisfy any of the conditions precedent or subsequent set forth in Section 7 and
8 above, Lender, in its sole discretion, may deem this Agreement void ab initio
as to any or all of Lender's agreements and/or obligations.
Covenants, Representations and Warranties. Obligor hereby makes the
following covenants, representations and warranties:
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.
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.
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/or any
of the other Financing Documents.
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Release of Claims.
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.
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
acknowledgment or admission by any Lender of liability for any matter, or a
precedent upon which liability may be asserted.
General Provisions.
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 the 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
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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.
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 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.
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.
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.
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.
Counterparts. This Agreement may be executed in any number of
counterparts, which together shall constitute one and the same agreement.
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.
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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.
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.
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 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 the 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.
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.
Notices. All notices, requests and demands to or upon the
respective parties hereto shall be given in accordance with the Financing
Documents.
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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FLEET CAPITAL CORPORATION XXXXXX BROTHERS, INC.
By: /s/ By: /s/
------------------------------ -------------------------
Its: Name: Xxxxx Xxxxx
------------------------------ -------------------------
BRANDPARTNERS GROUP, INC.
By: /s/
-------------------------
Name: Xxxxxx X.Xxxxxxxxx
-------------------------
SCHEDULE A
(Schedule of Obligations)
As of September 25, 2002, the Obligations outstanding with respect to the
Loans were as follows:
Loan Principal Balance
---- -----------------
A. $6,000,000 Revolving Credit Loan $4,187,231.00
B. $8,000,000 Term Loan $6,750,000.00
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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