Exhibit 10.71
WAIVER , dated as of March 31, 2003 (this "Waiver")
BY AND AMONG
(1) BRANDPARTNERS, 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 (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 and sold to CMII
certain warrants for the purchase of 450,000 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. 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 March 31, 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 (i) 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
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and delivered by each Company and (ii) shall remain in effect only so long as
each of (x) the Senior Credit Agreement and (y) the Purchase Agreement shall
remain in full force and effect.
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. Senior Credit Agreement Amendment. Section 8.2 of the Sixth Amendment
and Waiver Agreement to the Senior Credit Agreement dated as of March 18, 2003
(the "Sixth Amendment"), provides certain restrictions on the ability of Xxxxxx
to make payments of principal of and interest on the Notes. This will confirm
that CMII does not consent to the provisions of such section 8.2 to the extent
such provisions may be inconsistent with the Subordination Agreement. By signing
below, Xxxxxx confirms and agrees that it will make payments under the Notes to
the extent required by the terms of the Notes and permitted by the Subordination
Agreement.
7. 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.
8. Successors and Assigns. The Agreement shall inure to the benefit of and
be binding upon the parties hereto and their successors and assigns.
9. 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.
10. Headings. The headings in this Waiver are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
11. 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.
12. 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.
13. 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
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(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.
14. 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 Amendment to be duly executed
all as of the day and year first above written.
BRANDPARTNERS GROUP, INC.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Chief Financial Officer
XXXXXX BROTHERS, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chief Operating Officer
CORPORATE MEZZANINE II, L.P.
By: /s/ Hamad Al-Sagar
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Name: Hamad Al-Sagar
Title: Chairman
