AMENDMENT NO. 2 TO THE FORECLOSURE AND ASSET PURCHASE AGREEMENT
Exhibit
2.3
EXECUTION
COPY
AMENDMENT
NO. 2 TO THE
Amendment
No. 2, dated as of December 13, 2010, (this “Amendment”), to the
Foreclosure and Asset Purchase Agreement, dated as of November 12, 2010, as
previously amended by that certain Amendment ▇▇. ▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇
(▇▇ previously amended, the “Amended Purchase
Agreement”, and as amended by this Amendment or otherwise, this “Agreement”) by and
among Integrated Consulting Group, Inc., a Delaware corporation (“Buyer”), North Mill
Capital, LLC., a Delaware limited liability company (“Lender”), Integrated
Consulting Group of NY LLC, a New York limited liability company (“Borrower”), The
▇▇▇▇▇▇ Agency Inc., a New York corporation (“TAI”), The ▇▇▇▇▇▇
Agency of New Jersey, Inc., a New Jersey corporation (“TANJ”), ▇▇▇▇▇▇
Specialty Services Inc., a New York corporation (“TSS”), Segue Search
of New Jersey Inc., a New York corporation (“Segue” and
collectively with TAI, TANJ and TSS, the “Members”) and ▇▇▇▇
▇▇▇▇▇▇▇▇▇, a resident of the State of New York (“▇▇. ▇▇▇▇▇▇▇▇▇” and
collectively with the Members and Borrower, the “Borrower
Parties”). Capitalized terms used herein and not otherwise
defined shall have the respective meanings assigned to them by the Amended
Purchase Agreement.
Recital
WHEREAS,
each of the Parties and Lender desires to amend the Amended Purchase Agreement
as more particularly described herein.
NOW
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties and Lender hereby agree as follows:
1. Section
2.3(c) of the Amended Purchase Agreement is hereby amended by deleting such
Section in its entirety and substituting the following in its
place:
“(c) accounts
payable of Borrower to the third parties unaffiliated with the Borrower Parties
arising before the Closing and existing on the Closing Date (the “Borrower AP
Payments”), which shall include unpaid legal fees of the Borrower as of
the Closing Date which have been approved by Borrower; provided, that Buyer
shall not be responsible for any payment of Borrower’s accounts payable in
excess of $366,110 in the aggregate;”
2. Section
2.3(f) of the Amended Purchase Agreement is hereby amended by deleting such
Section in its entirety and substituting the following in its
place:
“(f) to
the extent not already paid by the Borrower, the liabilities and obligations of
Borrower outstanding on the Closing Date with respect to Borrower's failure to
pay payroll taxes and related payroll withholdings and contributions to the
appropriate taxing authorities accruing with respect to services rendered during
the period commencing with the week ending October 24, 2010 (for which payroll
was distributed on October 29, 2010 and for which payroll taxes and related
payroll withholdings and contributions were due November 2, 2010) and ending the
Closing Date, which amounts are set forth on Annex 2 hereto (the
“Unpaid Payroll
Taxes”), and all penalties, interest and fees that accrue thereon until
payment is made by Buyer (collectively, the “Unpaid Payroll Tax
Penalties”).”
3. Section
2.6(c)(v), (vi) and (vii) are hereby deleted in their entirety.
4. Article
VI of the Amended Purchase Agreement is hereby amended by adding the following
Section 6.7:
“Section
6.7 Buyer’s
Bank Accounts
Until
such date as the Unpaid Payroll Taxes have been paid to the appropriate taxing
authorities in accordance with the terms of this Agreement, ▇▇. ▇▇▇▇▇▇▇▇▇ shall
not have any access to or control over the funds of the Borrower or signing
authority with respect to any bank or other account of the
Borrower.”
5. Article
VII of the Amended Purchase Agreement is hereby amended by adding the following
Section 7.5:
“Section
7.5 Buyer
Post-Closing Covenants
Following
the Closing Date, Buyer covenants to make the payments specified
below.
(a) Buyer
shall pay the balance of the Borrower AP Payments as follows:
(i) Buyer
shall transfer to Borrower’s Counsel the aggregate amount of $212,912.07,
representing the Specified Borrower AP Payments, in three equal installments of
$70,970.69, with the installments to be paid to Borrower’s Counsel on each of
the Business Day following the Closing Date, December 21, 2010 and December 28,
2010 as the First Installment Payment, Second Installment Payment and the Third
Installment Payment, respectively. Such amounts shall be paid without
offset or setoff of any kind, and any amount which remains unpaid after the due
date of such payment shall bear interest at the rate of eight percent (8%) per
annum. Borrower’s Counsel shall pay the payees in the amounts set
forth on Annex
4 under each of the headings First Installment Payment, Second
Installment Payment and Third Installment Payment, on behalf of Borrower, after
receipt of each such payment.
(ii) Within
five (5) days following written notice given from time to time by ▇▇. ▇▇▇▇▇▇▇▇▇
to Buyer of the name of the payee and the amount of the requested payment (which
shall be subject to ▇▇. ▇▇▇▇▇▇▇▇▇’▇ sole and absolute discretion), provided that
the payee’s invoice shall accompany the request, or in accordance with sub-clause (2) below,
Buyer shall make payment as so directed, but only among the following payees:
(1) payees set forth on Annex 3 attached
hereto (other than payees included in Annex 4) in amounts
not greater than set forth opposite their names, (2) as directed or requested by
the New Jersey Department of Labor (“NJDOL”) with respect
to amounts which NJDOL alleges to be due from Borrower, or (3) professional
advisors engaged by ▇▇. ▇▇▇▇▇▇▇▇▇ on behalf of Borrower for invoices rendered
after the Closing Date concerning NJDOL, post-closing services related to the
Agreement and the transactions contemplated thereunder or services rendered with
respect to the winding up of business of Borrower; provided however, that all
such payments under this clause (ii) shall not
exceed $153,197.93 in the aggregate.
(b) Buyer
shall pay to ▇▇▇▇▇▇▇▇▇, by wire transfer of immediately available funds, the
amount equal to the liabilities and obligations of Borrower outstanding on the
Closing Date under the Commission Agreement (the “▇▇▇▇▇▇▇▇▇ Delinquent
Payment”) in accordance with the ▇▇▇▇▇▇▇▇▇ Payment
Schedule. Subject to final confirmation, reconciliation and
adjustments, the aggregate amount outstanding under the Commission Agreement
totals approximately $170,961.68.
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(c) Buyer
shall pay to (i) Borrower, on or before December 17, 2010, by wire transfer of
immediately available funds, the Unpaid Payroll Taxes, for further immediate
payment by Borrower to the appropriate taxing authorities; and (ii) the
appropriate taxing authorities, the amount of Unpaid Payroll Tax Penalties,
within five (5) Business Days of receipt of an assessment for any such
amount.”
6. Section
9.3(d) of the Amended Purchase Agreement is hereby amended by deleting such
Section in its entirety and substituting the following in its
place:
“(d) Lender
shall have received all documentation and funds as required by Section
2.6(c).”
7. Section
9.4(e) of the Amended Purchase Agreement is hereby deleted in its entirety.
”
8. Section
9.4(f) of the Amended Purchase Agreement is hereby deleting in its
entirety.
9. Section
10.1(b) of the Original Purchase Agreement is hereby amended by deleting such
Section in its entirety and substituting the following in its
place:
“(b) by
Lender or Buyer, if the Closing shall not have become effective on or before
December 14, 2010 (the “Outside Date”); provided, however, that the
right to terminate this Agreement under this Section 10.1(b) shall not be
available to any Party or Lender, as applicable, whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in, the
failure of the Transactions to be consummated on or before the Outside
Date;”
10. Article
XIII of the Original Purchase Agreement is hereby amended by inserting the
following defined terms in alphabetical order with the existing defined terms in
such Article:
““Borrower’s Counsel”
means Todtman, Nachamie, Spizz & ▇▇▇▇▇, P.C.
““First Installment
Payment” shall have the meaning ascribed to it on Annex
4.”
““Second Installment
Payment” shall have the meaning ascribed to it on Annex
4.”
““Third Installment
Payment” shall have the meaning ascribed to it on Annex
4.”
““NJDOL” shall have the
meaning ascribed to it in Section
7.5(a).”
““▇▇▇▇▇▇▇▇▇ Delinquent
Payment” shall have the meaning ascribed to it in Section
7.5(b).”
““Specified Borrower AP
Payments” shall mean those certain Borrower AP Payments set forth on
Annex
4.”
““Unpaid Payroll Tax
Penalties” shall have the meaning ascribed to it in Section
2.3(f).”
11. Annex
1 to the Amended Purchase Agreement is hereby amended by deleting such Annex in
its entirety and substituting Annex 1 attached hereto.
12. The
Amended Purchase Agreement is hereby amended by inserting Annexes 2 and 3
attached hereto as Annexes 2, 3 and 4, respectively, to such
Agreement.
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13. Except
as expressly amended hereby, the Amended Purchase Agreement shall continue in
full force and effect in accordance with the terms hereof.
14. This
Amendment shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to any choice of law or conflict of law
provision or rule that would cause application of the laws of any jurisdiction
other than the State of New York.
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IN WITNESS WHEREOF, each of
the Parties hereto and Lender has caused this Amendment to be duly executed as
of the date first written above.
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NORTH
MILL CAPITAL, LLC
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By:
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/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Title:
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Senior
Vice President
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INTEGRATED
CONSULTING GROUP OF NY LLC
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title:
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President
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▇▇▇▇▇▇
AGENCY OF NEW JERSEY, INC.
THE
▇▇▇▇▇▇ AGENCY INC.
▇▇▇▇▇▇
SPECIALTY SERVICES INC.
SEGUE
SEARCH OF NEW JERSEY INC.
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title:
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President
of each of the
foregoing
entities
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
individually
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[Amendment
No. 2 to the FAPA]
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INTEGRATED
CONSULTING GROUP, INC.
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By:
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/s/ ▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Name:
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▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Title:
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Chief
Executive Officer
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▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇, INC.
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By:
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/s/ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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Title:
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Executive
Vice President
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[Amendment
No. 2 to the FAPA]