AMENDMENT NO. 5 TO
SECOND AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 5 ("Amendment") is effective as of March 31, 2002 and entered
into as of May 14, 2002, by and between SPAR Marketing Force, Inc., SPAR, Inc.,
SPAR/Burgoyne Retail Services, Inc., SPAR Group, Inc., SPAR Incentive Marketing,
Inc., SPAR Trademarks, Inc., SPAR Performance Group, Inc. (f/k/a SPAR MCI
Performance Group, Inc.), SPAR Marketing, Inc. (DE), SPAR Marketing, Inc. (NV),
SPAR Acquisition, Inc., PIA Merchandising Co., Inc., Pacific Indoor Display Co.,
Inc. and Pivotal Sales Company (each a "Borrower" and collectively, the
"Borrowers") and IBJ Whitehall Business Credit Corporation ("Lender").
BACKGROUND
Borrowers and Lender are parties to a Second Amended and Restated
Revolving Credit, Term Loan and Security Agreement dated as of September 22,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Loan Agreement"), pursuant to which Lender provides Borrowers with certain
financial accommodations.
Borrowers have requested that Lender extent the term of the facility
and to amend certain provisions of the Loan Agreement and Lender is willing to
do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of the Borrowers by
Lender, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Loan Agreement is hereby
amended as follows:
(a) Section 1(A) of the Loan Agreement is amended as follows:
(i) the following defined terms in their appropriate
alphabetical order:
"Fifth Amendment" shall mean this Amendment No. 5 to Second
Amended and Restated Revolving Credit, Term Loan and Security
Agreement effective as of March 31, 2002.
(ii) the following defined terms are amended and restated in
their entirety to provide as follows:
"Term" shall mean the Closing Date through July 31, 2003 subject
to acceleration upon the occurrence of an Event of Default hereunder
or other termination hereunder.
(b) Section 2(j) of the Loan Agreement is amended in its entirety to
provide as follows:
"(j) Intentionally Omitted."
3. Conditions of Effectiveness. This Amendment shall become effective
as of March 31, 2002 upon Lender's receipt of: (i) four (4) copies of this
Amendment executed by Borrower and consented and agreed to by the Guarantors,
and (ii) such other certificates, instruments, documents and agreements as may
be required by Lender or its counsel, each of which shall be in form and
substance satisfactory to Lender and its counsel.
4. Representations and Warranties. Each Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of such Borrower and are
enforceable against such Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, such Borrower hereby
reaffirms that all continuing covenants, representations and warranties made in
the Loan Agreement, to the extent the same are not amended hereby, are true and
correct in all material respects and agrees that all such continuing covenants,
representations and warranties shall be deemed to have been remade as of the
effective date of this Amendment, excluding, however, those events subject to an
express written waiver or consent from us or those expressly permitted or not
prohibited by the covenants, provided, however, that any representation or
warranty incorporating schedules speak only as of the Closing Date, subject to
Borrower's obligation under Section 12(m) of the Loan Agreement to notify Lender
of certain occurrences or events.
(c) No Event of Default or Default has occurred and is continuing or
would exist after giving effect to this Amendment, excluding, however, those
events subject to an express written waiver or consent from us.
(d) As of the date hereof, Borrower has no defense, counterclaim or
offset with respect to the Loan Agreement.
5. Effect on the Loan Agreement.
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(a) Upon the effectiveness of this Amendment hereof, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended herein, the Loan Agreement, and
all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
2
(c) Except as expressly provided in this Amendment, the execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of Lender, nor constitute a waiver of any provision
of the Loan Agreement, or any other documents, instruments or agreements
executed and/or delivered under or in connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. Counterparts. This Amendment may be executed by the parties hereto
in one or more counterparts, each of which shall be deemed an original and all
of which when taken together shall constitute one and the same agreement.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
SPAR MARKETING FORCE, INC.
SPAR, INC.
SPAR/BURGOYNE RETAIL SERVICES, INC.
SPAR INCENTIVE MARKETING, INC.
SPAR TRADENAMES, INC.
SPAR PERFORMANCE GROUP, INC.
SPAR MARKETING, INC. (DE)
SPAR MARKETING, INC. (NV)
SPAR ACQUISITION, INC., as Borrowers
By: /s/ Charles Cimitile
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Name: Charles Cimitile
Title: Chief Financial Officer of
each of the foregoing entities
PIA MERCHANDISING CO., INC.
PACIFIC INDOOR DISPLAY CO., INC.
PIVOTAL SALES COMPANY
SPAR GROUP, INC., as Borrowers
By: /s/ Charles Cimitile
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Name: Charles Cimitile
Title: Chief Financial Officer of
each of the foregoing corporations
IBJ WHITEHALL BUSINESS CREDIT CORPORATION
By: /s/ Joseph Zautra
--------------------------------------------
Name: Joseph Zautra
Title: Vice President
CONSENTED AND AGREED TO:
/s/ Robert G. Brown
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Robert G. Brown, a Guarantor
/s/ William H. Bartels
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William H. Bartels, a Guarantor
PIA MERCHANDISING LIMITED,
a Guarantor
By: /s/ Charles Cimitile
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Name: Charles Cimitile
Title: Chief Financial Officer