Exhibit 10(f)
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT, dated as
of April ___, 2004 (this "Amendment"), is made by and among GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation ("Lender"), SPARKS EXHIBITS &
ENVIRONMENTS CORP., a Pennsylvania corporation ("Leading Borrower"), SPARKS
EXHIBITS & ENVIRONMENTS, LTD., a California corporation ("Second Borrower"),
SPARKS EXHIBITS & ENVIRONMENTS, INC., a Georgia corporation ("Third Borrower"),
and DMS STORE FIXTURES LLC, a Pennsylvania limited liability company ("Fourth
Borrower"; Leading Borrower, Second Borrower, Third Borrower and Fourth
Borrower, being collectively referred to herein as "Borrowers" and each a
"Borrower").
WITNESSETH :
WHEREAS, Borrowers and Lender are parties to that certain Loan
and Security Agreement, dated as of February 6, 2004 (as amended, supplemented
or otherwise modified from time to time, the "Loan Agreement"; capitalized terms
used but not otherwise defined herein shall have the meanings ascribed thereto
in the Loan Agreement); and
WHEREAS, Borrowers have requested that Lender amend the Loan
Agreement, as more fully set forth herein, and Lender is willing to do so
subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, the
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties, intending to be legally bound, do hereby agree as follows:
STATEMENT OF TERMS
1. Amendment to Schedule A. Schedule A is hereby amended as
follows:
(a) The following defined term is hereby added:
"Designated Account Debtor" shall mean each of the
Account Debtors listed in Schedule H attached hereto.
(b) Subparagraph (m) of the definition of "Eligible
Accounts" is hereby amended and restated in its entirety as follows:
(m) that is not paid within 60 days from its due date
or 120 days from its invoice date, except for the
Designated Account Debtors, with respect to which any
Account that is not paid within the number of days
from its due date or its invoice date set forth
opposite the name of each Designated Account Debtor
in Schedule H attached hereto, or that are Accounts
of an Account Debtor if 50% or more of the Accounts
owing from such Account Debtor remain unpaid within
such time periods.
(c) The definition of "Special Reserve" is hereby amended by
deleting the term "$100,000" contained therein and inserting in place thereof
the term "$125,000".
2. Elimination of Accrued Volume Rebate Reserve. The accrued
volume rebate reserve presently in place is hereby eliminated.
3. Representations and Warranties. To induce Lender to enter
into this Amendment, each Borrower hereby warrants and represents to Lender as
follows: (a) each representation and warranty of such Borrower set forth in the
Loan Agreement is hereby restated and reaffirmed as true and correct on and as
of the date hereof after giving affect to this Amendment as if such
representation or warranty were made on and as of the date hereof (except to the
extent that any such representation or warranty expressly relates to a prior
specific date or period in which case it is true and correct as of such prior
date or period); (b) no Default or Event of Default has occurred and is
continuing as of this date under the Loan Agreement after giving effect to this
Amendment; (c) such Borrower has the power and is duly authorized to enter into,
deliver and perform its obligations under this Amendment and to perform its
obligations under the Loan Agreement, as amended hereby; and (d) this Amendment
and the Loan Agreement, as amended hereby, constitutes a legal, valid and
binding obligation of such Borrower and is enforceable against such Borrower in
accordance with its terms.
4. Conditions Precedent to Effectiveness of this Amendment.
The effectiveness of this Amendment is subject to the fulfillment of the
following conditions precedent:
(a) Lender shall have received one or more counterparts of
this Amendment duly executed and delivered by each Borrower;
(b) Each Guarantor shall have consented to the execution,
delivery and performance of this Amendment and all of the transactions
contemplated hereby by signing one or more counterparts of this Amendment in the
appropriate space indicated below and returning the same to Lender; and
(c) Lender shall have received an amendment fee in the amount
of $2,500.
5. Continuing Effect of Loan Agreement. Except as expressly
modified hereby, the provisions of the Loan Agreement, and the Liens granted
thereunder, are and shall remain in full force and effect, and are hereby
ratified and continued including, without limitation, the provisions regarding
confession of judgment.
6. Counterparts. This Amendment may be executed in multiple
counterparts each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument. Any signature
delivered by a party via facsimile shall be deemed to be an original signature
hereto.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE WITHOUT REGARD TO THE
PRINCIPLES THEREOF REGARDING CONFLICTS OF LAWS.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first set
forth above.
SPARKS EXHIBITS & ENVIRONMENTS CORP.
By: ___________________________
Name: Xxxxxx X. Xxxxxxxx
Title:Chief Financial Officer
SPARKS EXHIBITS & ENVIRONMENTS, LTD.
By: ____________________________
Name: Xxxxxx X. Xxxxxxxx
Title:Chief Financial Officer
SPARKS EXHIBITS & ENVIRONMENTS, INC.
By: ___________________________
Name: Xxxxxx X. Xxxxxxxx
Title:Chief Financial Officer
DMS STORE FIXTURES LLC
By: ___________________________
Name: Xxxxxx X. Xxxxxxxx
Title:Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION
By:_______________________________
Name: Xxxxxxx Xxxx
Title: Duly Authorized Signatory
Each of the undersigned Guarantors, intending to be legally bound, does hereby
consent to the execution, delivery and performance of the within and foregoing
Amendment, and confirms and reaffirms, without setoff, counterclaim, deduction
or other claim of avoidance of any nature, the continuing effect of such
Guarantor's guarantee of the Obligations after giving effect to the foregoing
Amendment.
ACKNOWLEDGED and AGREED to as of the date first set forth above:
SPARKS EXHIBITS & ENVIRONMENTS CORP.
By: _______________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
SPARKS EXHIBITS & ENVIRONMENTS, LTD.
By: ____________________________
Name: Xxxxxx X. Xxxxxxxx
Title:Chief Financial Officer
SPARKS EXHIBITS & ENVIRONMENTS, INC.
By: ___________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
DMS STORE FIXTURES LLC
By: ___________________________
Name: Xxxxxx X. Xxxxxxxx
Title:Chief Financial Officer
MARLTON TECHNOLOGIES, INC.
By: _________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
SPARKS EXHIBITS HOLDING CORPORATION
By: _____________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
SPARKS EXHIBITS & ENVIRONMENTS INCORPORATED
By: ______________________________
Name: Xxxxxx X. Xxxxxxxx
Title:Chief Financial Officer
SPARKS EXHIBITS & ENVIRONMENTS COMPANY
By: ______________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
SCHEDULE H
Designated Account Debtor Payment Terms
Designated Account Debtor Days from Due Date Days from Invoice Date
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Leading Borrower:
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Adidas 90 150
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Astra Zeneca 75 120
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Boston Scientific 105 150
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Ciena 90 150
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DuPont 90 150
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GE Water Tech 75 150
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Hewlett Packard 75 120
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McKesson 90 150
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Motorola 90 150
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Okidata 90 150
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Telecordia 75 120
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Xxxxxxx 75 120
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Philips 90 150
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JDS 75 120
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Philips Semiconductors 90 150
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Toshiba 105 150
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Fourth Borrower:
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Abercrombie & Fitch 90 150
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Xxx. X. Xxxxx 90 150
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