Exhibit 10(a)
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT, dated as of
April 13, 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".
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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
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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
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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
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