EXHIBIT 10.14
CONSENT, JOINDER, RELEASE AND AMENDMENT AGREEMENT
THIS CONSENT, JOINDER, RELEASE AND AMENDMENT AGREEMENT (this
"Agreement") is entered into as of October 31, 2003, by and among SPAR MARKETING
FORCE, INC. ("SMF"), SPAR, INC. ("SPAR"), SPAR/XXXXXXXX RETAIL SERVICES, INC
("SBRS"), SPAR GROUP, INC. ("SGI"), SPAR INCENTIVE MARKETING, INC. ("SIM"), SPAR
TRADEMARKS, INC. ("STM"), SPAR MARKETING, INC. (DE) ("SMIDE"), SPAR MARKETING,
INC. (NV) ("SMINV"), SPAR ACQUISITION, INC. ("SAI"), SPAR GROUP INTERNATIONAL,
INC. ("International"), SPAR TECHNOLOGY GROUP, INC. ("STG"), SPAR/PIA RETAIL
SERVICES, INC. ("Pia Retail"), RETAIL RESOURCES, INC. ("Retail"), PIVOTAL FIELD
SERVICES, INC. ("Pivotal Field"), PIA MERCHANDISING CO., INC. ("PIA"), PACIFIC
INDOOR DISPLAY CO. ("Pacific"), PIVOTAL SALES COMPANY ("Pivotal") (each an
"Existing Borrower" and collectively, "Existing Borrowers"), SPAR ALL STORE
MARKETING SERVICES, INC., ("SAS") and WHITEHALL BUSINESS CREDIT CORPORATION
("Lender").
BACKGROUND
The Existing Borrowers and Lender are parties to that certain Third
Amended and Restated Revolving Credit and Security Agreement dated January 24,
2003 (as amended, restated, supplemented or otherwise modified from time to
time, the "Loan Agreement") pursuant to which Lender provides the Existing
Borrowers with certain financial accommodations.
SGI, the direct or indirect parent of all of the other Existing
Borrowers, has formed SAS, a Nevada corporation that is a wholly-owned
Subsidiary of SGI, and Spar Canada, Inc., a Nevada corporation ("SCI"), that is
a wholly-owned Unrestricted Subsidiary (as defined herein) of SGI. SCI has
formed SPAR Canada Company, a Nova Scotia unlimited liability company ("SCC") as
a wholly-owned Unrestricted Subsidiary of SCI.
The Existing Borrowers and SAS (together, but excluding International,
each a "Borrower" and collectively the "Borrowers") each desire to add SAS as a
Borrower and release International as a Borrower under (and as defined in) the
Loan Agreement, and the Lender has agreed to do so. In addition, the consent of
Lender under the Loan Agreement was required in connection with the formation of
SAS, SCI and SCC, which consent is hereby given. To avoid the necessity of
obtaining the consent of Lender for certain transactions in the future, Lender
and Borrowers seek to amend the Loan Agreement to permit certain new
acquisitions and investments.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of 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 or amended herein
shall have the meanings given to them in the Loan Agreement.
2. Joinder and Release.
(a) SAS hereby consents to being added and obligated as an additional
Borrower under the Loan Agreement and the Ancillary Agreements, and the
Borrowers and the Lender hereby agree that all references to "Borrower" or
"Borrowers" thereunder and under the Ancillary Agreements shall be deemed to
include SAS, and the definition of "Borrower" and "Borrowers" in the Loan
Agreement is hereby amended to include SAS.
(b) Effective as of the Amendment No. 1 Effective Date, SAS hereby
adopts the Loan Agreement and assumes in full, and acknowledges that it is
jointly and severally liable for, the payment, discharge, satisfaction, and
performance of all Obligations under the Loan Agreement and under the Ancillary
Agreements. SAS hereby grants to Lender a continuing lien and security interest
in all presently existing and hereafter arising Collateral that it now or
hereafter owns or has an interest in, wherever located, to secure the prompt
repayment of any and all Obligations owed to Lender and to secure the prompt
performance by Borrowers of each and all of their covenants and obligations
under the Loan Agreement and under the Ancillary Agreements. Lender's Lien and
security interest in the Collateral shall attach to all Collateral without
further act on the part of Lender or SAS.
(c) Lender hereby releases International as a Borrower under the Loan
Agreement and the Ancillary Agreements, and Borrowers and Lender hereby agree
that all references to "Borrower" or "Borrowers" thereunder and under the
Ancillary Agreements shall be deemed to exclude International.
3. Amendment. Subject to the satisfaction of Section 5 below, the Loan Agreement
is hereby amended as follows:
(a) The definition of "Borrower" and "Borrowers" appearing in the
preamble of the Loan Agreement are hereby amended to delete International.
(b) Section 1(A) is amended as follows:
(i) The definition of "EBITDA" is amended by deleting clause
(iv) appearing therein and by inserting, in lieu thereof, the
following:
"(iv) capitalized expenses of any Borrower or
Guarantor which expenses were previously deducted from net
income in calculating Earnings Before Interest and Taxes".
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(ii) The following defined terms are amended and restated in
its entirety to provide as follows:
"Fixed Charge Coverage Ratio" shall mean with respect to any
fiscal period the ratio of (a) (i) EBITDA of Borrowers on a
consolidated basis, minus (ii) Non-Financed Capital
Expenditures made during such period (including, without
limitation, capitalized expenditures for software) to (b)
Fixed Charges.
"Fixed Charges" shall mean the sum (without duplication) with
respect to any fiscal period of (i) all interest payments made
on the Loans hereunder during such period, plus (ii) all
dividends or other distributions to stockholders and other
payments made or paid with respect to any indebtedness for
money borrowed (excluding the principal amount of Revolving
Advances but including all payments made on capitalized
leases) during such period (including, without limitation,
payments permitted under Section 12(n)(iii)), plus (iii)
income or franchise taxes paid in cash during such period,
plus (iv) payments on the Shareholders Notes during such
period under Section 12(n)(iv) of this Agreement, plus, (v)
PIA and SPAR Merger Payments made during such period, plus,
(vi) capitalized expenses incurred in connection with
investments made by any Borrower in any Unrestricted
Subsidiary during such period, plus, (vii) the remainder for
such period (excluding all capital contributions and loans
made prior to September 1, 2003) of (A) all capital
contributions and/or loans made by any Borrower to any
Unrestricted Subsidiary during such period, minus, (B) all
returns of capital, distributions and/or repayment of loans
made to such Borrower from or on behalf of such Unrestricted
Subsidiary during such period.
(iii) The following defined terms are added in their
appropriate alphabetical order to provide as follows:
"Aggregate Consideration" shall mean, for all Borrowers with
respect to each acquisition, an amount equal to the sum of (i)
the cash purchase price for the assets acquired pursuant to
such acquisition, plus, (ii) the aggregate amount of
liabilities assumed for such acquisition, plus, (iii) any
amounts payable to any Seller where aggregate payments are in
excess of $250,000 per year for all employees, plus, (iv)
Excess Contingent Payments, the payment of which is incurred
in connection with the closing of the proposed acquisition
(included in each of (i) through (iii) are payments which may
be deferred so long as the amount of such payment is known at
the time of the closing of the proposed acquisition).
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"Amendment No. 1" shall mean the Consent, Joinder and
Amendment to the Loan Agreement, dated as of October 31, 2003,
among the Borrowers (including SAS) and Lender.
"Amendment No. 1 Effective Date" shall mean the date which all
of the conditions precedent set forth in Section 5 of
Amendment No. 1 have been satisfied.
"Contingent Payments" shall mean payments made to any Seller,
in connection with the acquisition by any Borrower of all or a
portion of the stock or all or substantially all of the assets
of such Seller, which payments shall be contingent on the
financial performance of the entity being acquired.
"Contract Criteria" shall mean the criteria utilized by any
Borrower in determining Contingent Payments, which criteria
shall be linked to earnings.
"Excess Contingent Payments" shall mean the remainder (which
at no time shall be less than zero) of (a) Contingent
Payments, minus (b) the remainder (which at no time shall be
less than zero) of with respect to the acquired business (i)
the product of (x) the projected Contract Criteria and (y) the
number of years Contingent Payments will be made, minus (ii)
the product of (x) the actual corresponding Contract Criteria
for the four (4) quarter period ending no more than three (3)
months prior to such acquisition and (y) the number of years
Contingent Payments will be made. Schedule 1 attached hereto
and made a part hereof sets forth examples of the above
calculation. In the event a criteria, other than the Contract
Criteria, is used by any Borrower in determining Contingent
Payments, Borrower shall equate such criteria to a Contract
Criteria and provide Lender with an estimate and analysis
substantially similar to those set forth on Schedule 1. Upon
receipt of such estimate and analysis, Lender shall determine
the allowable Excess Contingent Payments.
"Permitted Acquisitions" shall mean the acquisition of all or
a portion of the assets of a Person, formed or incorporated
under the laws of any State or Commonwealth of the United
States of America, by one or more Borrowers (a) that occurs at
a time when (i) aggregate Undrawn Availability (inclusive of
the Supplemental Amount) is greater than $2,500,000 after
giving effect to the proposed acquisition and (ii) no Default
or Event of Default has occurred or would occur after giving
effect to the proposed acquisition; (b) with Aggregate
Consideration in an amount not to exceed $1,500,000 in the
aggregate from the Amendment No. 1
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Effective Date through the last day of the Term, for all such
transactions for all Borrowers; (c) that has not specifically
been consented to by Lender and (d) pursuant to documentation
in form and substance reasonably satisfactory to Lender and
its counsel; provided, however, that in the event the
acquiring entity of any acquisition is not a Borrower, (x)
such acquiring entity would be required to be joined as a
Borrower under the Loan Agreement pursuant to a Joinder
Agreement substantially in the form of Exhibit 1 to Amendment
No. 1 or (y) provided that Lender did not approve such
acquiring entity to be joined as a Borrower under the Loan
Agreement, such acquiring entity would be required to become a
Guarantor pursuant to a Guaranty in form and substance
satisfactory to Lender and, as security for all of the
obligations under the Guaranty, to pledge all of its assets to
Lender pursuant to a Guarantor Security Agreement in form and
substance satisfactory to Lender."
"SAS" shall mean SPAR All Store Marketing Services, Inc., a
Nevada corporation.
"SCC" shall mean SPAR Canada Company, a Nova Scotia unlimited
liability company.
"SCI" shall mean SPAR Canada, Inc., a Nevada corporation.
"Seller" shall mean any entity engaged in the sale of all or a
portion of the stock or all or substantially all of the assets
of a business or any person having an equity, membership,
partnership or other capital interest in the Seller pursuant
to an acquisition, employment or consulting agreement.
"Spar FM Credit Facility" shall mean that certain credit
facility entered into between Spar, FM, a joint venture and
Mizuho and UFJ in the amount of $2,400,000 pursuant to which
Xxxxxx, Inc. has guaranteed the entire amount of such credit
facility and SGI has indemnified Xxxxxx, Inc. for fifty
percent (50%) of the outstanding principal balance at any one
time.
"Unrestricted Subsidiary" shall mean any Subsidiary of any
Borrower designated as such by the Board of Directors of such
Borrower. The Board of Directors may designate any Subsidiary
of such Borrower to be an Unrestricted Subsidiary if (i) such
Subsidiary is formed primarily for the purpose of investing in
or investing in an entity that is investing in entities, joint
ventures or other businesses established under the laws of a
foreign country, (ii) such Subsidiary is and remains a
wholly-owned Subsidiary of
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such Borrower, (iii) no Default or Event of Default is
existing or will occur as a consequence of such investment,
(iv) such Subsidiary and each of its Subsidiaries has not at
the time of designation, and does not thereafter, create,
incur, issue, assume, guarantee, or otherwise become directly
or indirectly liable with respect to any indebtedness pursuant
to which the obligee has recourse to any Collateral of any
Borrower or any Guarantor, and (v) such Subsidiary has not
guaranteed or otherwise directly or indirectly provided credit
support for any indebtedness of any Borrower or any Guarantor
or any Subsidiary of any Borrower or any Guarantor. Each such
designation shall be evidenced by filing with Lender a
certified copy of the resolution giving effect to such
designation and a certificate of the Secretary or other
authorized officer certifying that such designation complied
with the foregoing conditions. International, SCI and SCC are
hereby designated Unrestricted Subsidiaries as of Amendment
No. 1 Effective Date and shall remain as such provided the
only assets of such entities consist of direct or indirect
ownership interests in other Unrestricted Subsidiaries or
entities, joint ventures or other businesses established under
the laws of a foreign country. Any Subsidiary or joint venture
of an Unrestricted Subsidiary shall be deemed an Unrestricted
Subsidiary for purposes of this Agreement. Any Subsidiary
deemed an Unrestricted Subsidiary shall neither be joined as a
Borrower under the Loan Agreement nor become a Guarantor.
(iv) The definition of "Permitted Lien" is hereby amended by
the addition of the following new clause at the end thereof (before the
period):
"; and (x) liens upon any asset or property of any
Unrestricted Subsidiary."
(c) Section 2(j) is amended and restated in its entirety to provide as
follows:
"(a) In no event shall the aggregate outstanding
balance of Revolving Advances plus Letters of Credit
utilized by, or for the benefit of, (a) STG exceed
$2,000,000 or (b) PIA Retail, Retail and Pivotal
exceed $500,000 individually."
(d) Section 12(n)(i) is amended and restated in its entirety to provide
as follows:
"(i) create, incur, assume or suffer to exist any
indebtedness (exclusive of trade debt) whether
secured or unsecured other than Borrowers'
indebtedness to Lender, except for (A) purchase money
indebtedness incurred in the purchase of Equipment in
the ordinary course of business so long as each
obligation for purchase
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money indebtedness is secured only by the Equipment
purchased, (B) obligations constituting indebtedness
under GAAP arising under capitalized leases entered
into in the ordinary course of business, (C)
indebtedness of SCC guaranteed (on an unsecured
basis) by SGI in an amount not to exceed $500,000,
and (D) indebtedness incurred in connection with the
closing of any Permitted Acquisitions (except for
indebtedness assumed as permitted under and subject
to the limitations contained in the definition of
"Permitted Acquisitions"); provided, however, that
the aggregate amounts permitted under clauses (A) and
(B) shall not exceed $2,000,000 per annum in the
aggregate for all Borrowers in any fiscal year.
(e) Section 12(n)(ii) is amended and restated in its entirety to
provide as follows:
"(ii) declare, pay or make any dividend or
distribution on any shares of its common stock or
preferred stock or apply any of its funds, property
or assets to the purchase, redemption or other
retirement of any common or preferred stock issued by
it; provided, however, Borrowers shall be permitted
to make stock purchases in the aggregate of up to (x)
$900,000 during fiscal year ending December 31, 2003
(the "2003 Limit"); provided, that up to $300,000 of
any unutilized 2003 Limit may be carried over and
utilized in any succeeding fiscal years, and (y)
$500,000 during any fiscal year ending after January
1, 2004, provided, that the Borrowers shall have
average Undrawn Availability of not less than
$2,500,000 for the ten day period prior to each such
buyback and would have Undrawn Availability of not
less than $2,500,000 after giving affect to each such
buyback;"
(f) Section 12(n)(v) is amended by deleting the word "and" before
clause (E) and adding the following new clause at the end thereof (before the
semi-colon):
"and (F) any investment made by any Borrower in any
Unrestricted Subsidiary, in the form of a capitalized
expense, capital contribution or loan, for purposes
of investing in or investing in an entity which is
investing in entities or participating in joint
ventures formed under the laws of a foreign country,
provided that such investment shall not exceed
$500,000 in the aggregate for all Borrowers made in
all Unrestricted Subsidiaries during any fiscal year
(with such limitation for fiscal year 2003 to be
applicable only with respect to investments during
the period September 1, 2003 through December 31,
2003).
(g) Section 12(n)(vi) is amended by deleting the word "or" before
clause (D) and adding the following new clause at the end thereof (before the
semi-colon):
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", or (E) in connection with the Spar FM Credit
Facility up to an amount not to exceed $1,200,000 in
the aggregate;
(h) Section 12(n)(vii) is amended and restated in its entirety to
provide as follows:
"(vii) enter into any merger, consolidation or other
reorganization with or into any other Person (other
than a Borrower) or, other than pursuant to a
Permitted Acquisition, acquire all or a portion of
the stock or all or substantially all of the assets
of any Person (other than a Borrower or an
Unrestricted Subsidiary) or permit any other Person
(other than a Borrower) to consolidate with or merge
with it (so long as the surviving Person of any
merger or consolidation with a Borrower or the
acquiring Person of any acquisition of a Borrower is
a Borrower);"
(i) Section 12(n)(viii) is amended and restated in its entirety to
provide as follows:
"(viii) form any Subsidiary or enter into any
partnership, joint venture or similar arrangement
other than an Unrestricted Subsidiary or pursuant to
a Permitted Acquisition;"
(j) Section 12(n)(xi) is amended and restated in its entirety to
provide as follows:
"(xi) enter into any transaction with any Affiliate,
except in ordinary course on arms-length terms, and
except for investments, capital contributions and
loans permitted in Unrestricted Subsidiaries
hereunder and the repayment thereof;"
(k) Section 19(viii) is amended and restated in its entirety to provide
as follows:
"(viii) any lien created hereunder or under any
Ancillary Agreement for any reason ceases to be or is
not a valid and perfected lien having a first
priority interest, excluding, however, (i) liens upon
Collateral that may be collected, sold or otherwise
disposed of from time to time as contemplated under
this Agreement or any Ancillary Agreement, (ii) liens
whose perfection lapses through the action or
inaction of Lender notwithstanding accurate
information timely provided to Lender by Borrowers,
(iii) liens upon any asset or property of any
Unrestricted Subsidiary, or (iv) liens upon
Collateral having a value secured in an amount not to
exceed $100,000 in the aggregate for all Borrowers;"
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(l) Section 19(xi) is amended and restated in its entirety to provide
as follows:
"(xi) any Guarantor or any Subsidiary (other than an
Unrestricted Subsidiary, provided, however,
outstanding liabilities of such Unrestricted
Subsidiary shall not exceed $500,000) shall (i) apply
for or consent to the appointment of, or the taking
possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part
of its property, (ii) admit in writing its inability,
or be generally unable, to pay its debts as they
become due or cease operations of its present
business, (iii) make a general assignment for the
benefit of creditors, (iv) commence a voluntary case
under the federal bankruptcy laws (as now or
hereafter in effect), (v) be adjudicated a bankrupt
or insolvent, (vi) file a petition seeking to take
advantage of any other law providing for the relief
of debtors, (vii) acquiesce to, or fail to have
dismissed, within forty-five (45) days, (x) any
petition filed against it in any involuntary case
under such bankruptcy laws, or (y) any proceeding or
petition seeking the appointment of a receiver,
custodian, trustee or liquidator of itself or all or
a substantial part of its property or (viii) take any
action for the purpose of effecting any of the
foregoing;
4. Consent. Subject to the satisfaction of Section 5 below Lender hereby
consents to (i) the formation and joinder of SAS, (ii) the acquisition by SAS
pursuant to, and on substantially the terms set forth in, the Asset Purchase and
Sale Agreement dated as of February 28, 2003 between All Store Marketing
Services, Inc. and SAS, (iii) the formation of SCI and (iv) the formation of and
acquisition by SCC pursuant to, and substantially on the terms set forth in, the
Asset Purchase and Sale Agreement dated (as of) June 14, 2003, between SCC and
Kaboom Entertainment Inc., and the Consulting Agreement dated (as of) June 14,
2003, between Devco Productions Inc. and SCC.
5. Conditions of Effectiveness. This Agreement shall become effective as of the
date hereof, provided that the following conditions shall have been satisfied
(unless any condition is waived by Lender): Lender shall have received (i) four
(4) copies of this Agreement executed by the Borrowers (including SAS), (ii) an
Officer's Certificate, together with attachments, substantially identical to
those provided in connection with the closing of the Loan Agreement as same
applies to SAS, (iii) an opinion of counsel from Jenkens & Xxxxxxxxx Xxxxxx
Xxxxxx LLP covering the items which were opined upon in its January 24, 2003
opinion letter as such items apply to SAS, (iv) a Secretary's Certificate and
resolutions, all in form and substance satisfactory to Lender and its counsel
for SAS, (v) four (4) executed copies of an amendment to the Pledge Agreement of
SGI, pursuant to which all of the stock of SAS is pledged to Lender, such
amendment to be in form and substance satisfactory to Lender, (vi) stock
certificates and stock powers with respect to all of the stock of SAS, and (vii)
such other certificates, instruments, documents, agreements and opinions of
counsel as may be required by Lender or its counsel, each of which shall be in
form and substance satisfactory to Lender and its counsel.
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6. Representations, Warranties and Covenants. Each of the Borrowers (including
SAS) hereby represents, warrants and covenants as follows:
(a) This Agreement and the Loan Agreement constitute legal, valid and
binding obligations of each of the Borrowers and are enforceable against each of
the Borrowers in accordance with their respective terms.
(b) Upon the effectiveness of this Agreement, each of the Borrowers
hereby reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agrees that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Agreement.
(c) No Borrower has any defense, counterclaim or offset with respect to
the Loan Agreement or the Obligations.
7. Effect on the Loan Agreement.
(a) 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.
(b) The execution, delivery and effectiveness of this Agreement 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.
8. Governing Law. This Agreement 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
(other than those conflict of law rules that would defer to the substantive law
of another jurisdiction).
9. Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
10. Counterparts; Facsimile Signatures. This Agreement may be executed by the
parties hereto in one or more counterparts of the entire document or of the
signature pages hereto, each of which shall be deemed an original and all of
which taken together shall constitute one and the same agreement. Any signature
received by facsimile transmission shall be deemed an original signature hereto.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year
first written above.
SPAR MARKETING FORCE, INC.
By:___________________________
Name:
Title:
SPAR, INC.
By:___________________________
Name:
Title:
SPAR MARKETING FORCE, INC.
By:___________________________
Name:
Title:
SPAR, INC.
By:___________________________
Name:
Title:
SPAR/XXXXXXXX RETAIL SERVICES,
INC.
By:___________________________
Name:
Title:
SPAR INCENTIVE MARKETING, INC.
By:___________________________
Name:
Title:
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SPAR TRADEMARKS, INC.
By:___________________________
Name:
Title:
SPAR MARKETING, INC. (DE)
By:___________________________
Name:
Title:
SPAR MARKETING, INC. (NV)
By:___________________________
Name:
Title:
SPAR ACQUISITION, INC.
By:___________________________
Name:
Title:
SPAR GROUP INTERNATIONAL, INC.
By:___________________________
Name:
Title:
SPAR TECHNOLOGY GROUP, INC.
By:___________________________
Name:
Title:
12
SPAR/PIA RETAIL SERVICES, INC.
By:___________________________
Name:
Title:
RETAIL RESOURCES, INC.
By:___________________________
Name:
Title:
PIVOTAL FIELD SERVICES, INC.
By:___________________________
Name:
Title:
PIA MERCHANDISING CO., INC.
By:___________________________
Name:
Title:
PACIFIC INDOOR DISPLAY CO.
By:___________________________
Name:
Title:
13
PIVOTAL SALES COMPANY
By:___________________________
Name:
Title:
SPAR GROUP, INC.
By:___________________________
Name:
Title:
SPAR ALL STORE MARKETING
SERVICES, INC.
By:___________________________
Name:
Title:
WHITEHALL BUSINESS CREDIT
CORPORATION
By:___________________________
Name:
Its:
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Schedule I
Example 1:
If the contract criteria for a Contingent Payment of $150,000 per year for 5
years required that the acquired business must have EBIT of $500,000 for each
year, and the historical EBIT for the last twelve months of the acquired
business prior to acquisition was $600,000, the Excess Contingent Payments would
be $750,000, calculated as follows:
(a) Contingent Payments = $750,000 ($150,000 x 5)
minus
(b) The remainder (but not less than zero) of:
(i) the projected contract criteria results for the payment period
= $2,500,000 ($500,000 projected EBIT x 5),
minus
(ii) actual corresponding contract criteria = $3,000,000
( $600,000 EBIT x 5).
Equals $750,000 minus ($2,500,000 minus $3,000,000) = $750,000.
Example 2:
If the contract criteria for a Contingent Payment of $150,000 per year for 5
years required that the acquired business must have EBIT of $500,000 for each
year, and the historical EBIT for the last twelve months of the acquired
business prior to acquisition was $200,000, the Excess Contingent Payments would
be $0, calculated as follows:
(a) Contingent Payments = $750,000 ($150,000 x 5)
minus
(b) The remainder (but not less than zero) of:
(i) the projected contract criteria results for the payment period
= $2,500,000 ( $500,000 projected EBIT x 5),
minus
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(ii) Actual corresponding contract criteria = $1,000,000
( $200,000 EBIT x 5).
Equals $750,000 minus ($2,500,000 minus $1,000,000) = $0.
Example 3:
If the contract criteria for a Contingent Payment of $150,000 per year for 5
years required that the acquired business must have EBIT of $500,000 for each
year, and the historical EBIT for the last twelve months of the acquired
business prior to acquisition was $400,000, the Excess Contingent Payments would
be $250,000, calculated as follows:
(a) Contingent Payments = $750,000 ($150,000 x 5)
minus
(b) The remainder (but not less than zero) of:
(i) the projected contract criteria results for the payment period
= $2,500,000 ( $500,000 projected EBIT x 5),
minus
(ii) Actual corresponding contract criteria = $2,000,000
( $400,000 EBIT x 5).
Equals $750,000 minus ($2,500,000 minus $2,000,000) =
$250,000.
Example 4:
[Excess Contingent Payment calculation when Contingent Payments are based upon
a percentage of sales]
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