Unassociated Document


    
      Exhibit
10.2

    

     

     

     

    WAIVER AND AMENDMENT NO. 4 TO
NOTE, dated as of November [__], 2009 (this "Waiver and
Amendment")

    


    BY
AND AMONG

    


    
      	
              (1)  

            	
              BRANDPARTNERS GROUP,
      INC., a Delaware corporation ("BPG");

            


    

     

    
      	
              (2)  

            	
              BRANDPARTNERS RETAIL,
      INC., a New Hampshire
      corporation (formerly known as Willey Brothers, Inc.) ("BPR");

            


    

     

    
      	
              (3)  

            	
              GRAFICO INCORPORATED, a
      Delaware corporation and wholly-owned subsidiary of BPG ("Grafico", and together
      with BPG and BPR, collectively, the "Companies");
      and

            


    

     

    
      	
              (4)  

            	
              CORPORATE MEZZANINE II,
      L.P., a British Virgin Islands limited partnership ("CMII").

            


    

     

    WHEREAS, BPG, BPR, and CMII
are parties to a certain Subordinated Note and Warrant Purchase Agreement of
October 22, 2001, as amended by Amendment No. 1 and Waiver dated as of
May 14, 2002, Amendment No. 2 and Waiver dated as of August 9,
2002, Amendment No. 3 and Waiver dated as of January 7, 2004, Amendment No. 4,
dated as of May 5, 2005, Amendment No. 5 and Waiver, dated as of March 28, 2007
and Amendment No. 6, dated as of March 27, 2008 (the "Purchase Agreement"), pursuant
to which BPR has issued and sold to CMII a subordinated promissory note in the
original principal amount of $5,000,000 with a final maturity of October 29,
2010 (as amended by Amendment No. 1, dated as of January 7, 2004, Amendment No.
2, dated as of March 27, 2008, and Amendment No. 3, dated as of March 31, 2009,
the "Original Note" and
as amended hereby, the "Note") and BPG has issued and
sold to CMII certain warrants for the purchase of an aggregate of 665,000 shares
of common stock of BPG

     

    WHEREAS,
the Companies have notified CMII that one or more Events of Default have
occurred and continue to exist under the Purchase Agreement as a result of the
failure by BPR to (i) make the September 30, 2009 interest payment on the
Original Note and (ii) comply with Section 8.3(d) of the
Purchase Agreement for the fiscal quarter ended September 30, 2009
(collectively, the "Subject
Events of Default");

     

    WHEREAS, the Companies have
asked CMII to waive the Subject Events of Default, but only for the specific
covenants and time period set forth above, and to defer payment of the September
30, 2009 interest payment on the Original Note to January 15, 2010;
and

     

    WHEREAS, subject to the
satisfaction of the conditions set forth in Section 5, CMII is
willing to waive the Subject Events of Default, but only for the specific
covenants and time periods set forth above, and to defer payment of the
September 30, 2009 interest payment on the Original Note to January 15,
2010.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    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 and Amendment shall have the meanings given them in
the Purchase Agreement unless otherwise defined herein.

     

    (2) Affirmation of Transaction
Documents.  Each Company acknowledges that each of the Purchase
Agreement, the Original Note and each Warrant is a valid and binding obligation
of the Companies, in the case of the Purchase Agreement, of BPG, in the case of
the Warrant, and of BPR, in the case of the Original Note, enforceable against
the Companies, BPG or BPR, as the case may be, in accordance with their
respective terms.

     

    (3) Waiver.  Effective
as of the Effective Date (as hereinafter defined) and subject to the conditions
to effectiveness set forth in Section 5 hereof,
CMII hereby waives the Subject Events of Default.  Anything herein to
the contrary notwithstanding, (i) CMII's waiver only applies to the specific
provisions noted above and (ii) BPR is required to comply with Section 8.3(d) of the
Purchase Agreement, other than as waived by this Waiver and Amendment, at all
times in the future.

     

    (4) Amendment to Original
Note.  Effective as of the Effective Date (as hereinafter
defined) and subject to the conditions to effectiveness set forth in Section 5 hereof, the
Original Note is hereby amended as follows:

     

    
      	
               
      

            	
              (a)

            	
              Section 2(a) of
      the Original Note is amended by adding at the end of such section the
      following: "Notwithstanding anything contained in the foregoing portions
      of this Section
      2(a), effective as of September 30, 2009, interest that shall have
      accrued on the Accreted Principal Amount of this Note shall be payable at
      the rate of 18% per annum, of which 12% per annum shall be paid in cash on
      each Interest Payment Date and of which 6% per annum shall be paid on each
      Interest Payment Date by addition of such accrued and unpaid interest to
      the principal outstanding under this Note and shall constitute a 'PIK
      Amount' and shall be included in determining the Accreted Principal Amount
      of this Note for all purposes; provided, that
      the interest that was payable on the September 30, 2009 Interest Payment
      Date shall be paid in the manner provided in this sentence on January 15,
      2010 (together
      with interest on the 12% cash pay portion thereof at the rate of eighteen
      (18.0%) per annum)."

            


    

     

    
      	
               
      

            	
              (b)

            	
              BPR
      hereby authorizes CMII to attach this Amendment as an allonge to the
      Original Note, and this Amendment shall be attached as Exhibit 4 to
      the Original Note.

            


    

     

    
      	
              (5)  

            	
              Conditions.  The
      waiver contained in Section 3 and
      the amendment contained in Section 4
      hereof shall become effective upon the satisfaction in full of the
      following conditions on the date (the "Effective Date"), on or
      prior to November [__], 2009, on
which:

            


    

     

    
      	
              (a)  

            	
              CMII
      shall have executed and delivered a counterpart of this Waiver and
      Amendment and CMII shall have received a counterpart of this Waiver and
      Amendment executed and delivered by each
  Company;

            


    

     

    
      	
              (b)  

            	
              CMII
      shall have received a fully executed counterpart of a waiver under the
      Senior Credit Agreement, executed by TD Bank, N.A., BPR and the other
      parties thereto, substantially in the form of Exhibit 1, and
      all conditions to the effectiveness of such waiver shall have been
      satisfied

            


    

     

    
      	
              (c)  

            	
              TD
      Bank, N.A. shall have consented in writing to the amendments contained in
      Section 4
      hereof and CMII shall have received a counterpart of such consent
      substantially in the form of Exhibit
      2.

            


    

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    (6) Reimbursement of
Expenses.  BPR 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 Amendment, and all documents executed in connection herewith.

     

    (7) Purchase Agreement and
Original Note to Remain in Force.  Except as specifically
provided herein, the Purchase Agreement, the Original Note and the other
Transaction Documents 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 Note to "this Note", "hereof" or "herein" or the
like, and all references in the other Transaction Documents to the Note, shall
mean and refer to the Original Note as amended 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 and Amendment 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 and Amendment 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 Purchase Agreement or the Note.  No modification or
waiver of any provisions of this Waiver and Amendment 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 and Amendment 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 and Amendment hereby
irrevocably agrees that any legal action or proceeding arising out of or
relating to this Waiver and Amendment 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 WAVER OR THE SUBJECT MATTER
HEREOF.  EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THIS WAIVER AND
AMENDMENT IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER AND AMENDMENT IN ENTERING INTO THIS
TRANSACTION, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER AND AMENDMENT IN
ITS RELATED FUTURE DEALINGS. 

     

    
      
         

      

      
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    (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.

     

    (15)             Limited
Waivers.  The waiver of the Subject Events of Default is
subject to the satisfaction of the conditions set forth in Section 5, are
applicable only to the specific violations and provisions described as "Subject
Events of Default" and to no other Events of Default, known or unknown, nor to
any other failure of any Company to comply with any term or provisions of any
Transaction Document, and the granting by CMII of the waiver of the Subject
Events of Default does not imply any agreement to provide any subsequent waiver
of any Default or Event of Default.

     

    (16)             Reaffirmation of Subsidiary
Guarantee.  Grafico reaffirms its obligations to CMII
pursuant to the terms of the Subsidiary Guarantee, dated as of May 5, 2005,
and acknowledges that CMII may amend, restate, extend, renew or otherwise
modify the Purchase Agreement, the Note or the Warrants and any indebtedness or
agreement of BPR, or enter into any agreement or extend additional or other
credit accommodations to BPR, without notifying or obtaining the consent of
Grafico and without impairing the liability of Grafico under the Subsidiary
Guarantee for all of BPR's present and future indebtedness to CMII.

     

    [signature page follows]

     

    
      
         

      

      
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    IN
WITNESS WHEREOF, the parties have caused this Waiver and Amendment to be duly
executed all as of the day and year first above written.

     

    
      
        
          
            
              	BRANDPARTNERS
      GROUP, INC.	 
	 	 
	 	 
	 	 	 
	
                      By:
      

                    	 	 
	 	Name :	 
	 	Title :	 
	 	 	 


            

          

        

      

    

     

    
       

      
        
          
            
              
                	BRANDPARTNERS
      RETAIL, INC.	 
	 	 
	 	 
	 	 	 
	
                        By:
      

                      	 	 
	 	Name :	 
	 	Title :	 
	 	 	 


              

            

          

        

      

       

    

     

    
      
        
          
            
              
                	GRAFICO
      INCORPORATED	 
	 	 
	 	 
	 	 	 
	
                        By:
      

                      	 	 
	 	Name :	 
	 	Title :	 
	 	 	 


              

            

          

        

      

       

    

    
       

      
        
          
            
              
                
                  	GRAFICO
      INCORPORATED	 
	 	 
	 	 
	 	 	 
	
                          By:
      

                        	 	 
	 	Name :	 
	 	Title :	 
	 	 	 


                

              

            

          

        

         

      

    

    
      
         

      

      
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    EXHIBIT
2

     

    ACKNOWLEDGMENT
AND AGREEMENT OF SENIOR LENDER

     

    Reference
is made to (i) the foregoing Waiver and Amendment No. 4 to Note, dated as of
November [__], 2009, among BrandPartners Group, Inc., a Delaware corporation
("BPG"), BrandPartners
Retail, Inc., a New Hampshire corporation ("BPR"), Grafico Incorporated, a
Delaware corporation ("Grafico") and Corporate
Mezzanine II, L.P., a British Virgin Islands limited partnership ("CMII") (the "Waiver and Amendment") and
(ii) the Subordination Agreement, dated as of May 5, 2005, among the
undersigned, CMII, BPR and Grafico (as heretofore amended, the "Subordination
Agreement").

     

    The
undersigned hereby (i) acknowledges receipt of the foregoing Waiver and
Amendment; (ii) consents to the terms and execution thereof and to the
amendments set forth in Section 4 thereof;
and (iii) reaffirms its obligations to CMII under the Subordination
Agreement.

     

    
      
        
          	 	TD
      BANK, N.A.	 
	 	 	 	 
	
                   

                	
                  By:
      

                	 	 
	 	Name: 	 	 
	 	Title: 	
                	 
	 	 	 	 


        

      

    

     

    
      
         

      

      
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