AMENDMENT NO. 4 TO
SECOND AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 4 ("Amendment") is entered into as of March __, 2002, by
and between SPAR Marketing Force, Inc., SPAR, Inc., SPAR/Xxxxxxxx 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 waive the net worth covenant for the
year ending December 31, 2001 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 by adding the
following defined terms in their appropriate alphabetical order:
"Fourth Amendment" shall mean this Amendment No. 4 to Second
Amended and Restated Revolving Credit, Term Loan and Security
Agreement dated as of March __, 2002.
"Fourth Amendment Effective Date" shall mean the date on which
all conditions precedent set forth in the Fourth Amendment shall be
satisfied.
(b) Section 12(o) of the Loan Agreement is amended in its entirety to
provide as follows;
"(o) it shall cause to be maintained for Borrowers on a
consolidated basis at the end of the fiscal quarter ending December
31, 2001 Net Worth of at least $10,875,000 and it shall increase such
Net Worth at the end of each fiscal quarter thereafter by at least an
additional $100,000 for each fiscal quarter;"
3. Waiver. Subject to the conditions precedent set forth in Section 4
below, Lender hereby waives the Events of Default which have occurred as a
result of Borrowers' non-compliance with Section 12(o) of the Loan Agreement for
the fiscal quarter ending December 31, 2001 to the extent the Net Worth for
Borrowers on a consolidated basis at such date was not less than $10,875,000.
4. Conditions of Effectiveness. This Amendment shall become effective as of
the Fourth Amendment Effective Date 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.
5. 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.
6. Effect on the Loan Agreement.
(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.
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(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.
(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.
7. 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.
8. 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.
9. 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]
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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/XXXXXXXX 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:
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Name: Xxxxxxx Xxxxxxxx
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:
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer of
each of the foregoing corporations
IBJ WHITEHALL BUSINESS CREDIT CORPORATION
By:
-------------------------------------
Name:
Title:
CONSENTED AND AGREED TO:
---------------------------------
Xxxxxx X. Xxxxx, a Guarantor
---------------------------------
Xxxxxxx X. Xxxxxxx, a Guarantor
PIA MERCHANDISING LIMITED,
a Guarantor
By:
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
