EX-10 3 d804193_1.txt 10.15 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. ----------------------------- (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 -------------------------------------------- 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 -------------------------------------------- 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 -------------------------------- Robert G. Brown, a Guarantor /s/ William H. Bartels -------------------------------- William H. Bartels, a Guarantor PIA MERCHANDISING LIMITED, a Guarantor By: /s/ Charles Cimitile ----------------------------- Name: Charles Cimitile Title: Chief Financial Officer