WAIVER TO THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS WAIVER (this "Waiver") is entered into as of March 31, 2005, 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 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"), SPAR ALL STORE MARKETING
SERVICES, INC., ("SAS") and SPAR XXXX XXXX, INC. ("SBFI") (each a "Borrower" and
collectively "Borrowers") and XXXXXXX BUSINESS CREDIT CORPORATION (formerly
known as Whitehall Business Credit Corporation) ("Lender").
BACKGROUND
The 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 Borrowers with certain
financial accommodations.
The Borrowers have violated certain covenants and have requested Lender
waive the resulting Events of Default and Lender is willing to do so.
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. Waiver. Subject to the satisfaction of Section 3 below, Lender hereby waives
the Event of Default which has occurred as a result Borrowers' non-compliance
with Section 12(r) due to Borrowers' failure to achieve EBITDA for October, 2004
and December, 2004 at the requisite level for each such month. Notwithstanding
the foregoing, the waiver of the Events of Default set forth above does not
establish a course of conduct between Borrowers and Lender and Borrowers hereby
agree that Lender is not obligated to waive any future Events of Default under
the Loan Agreement.
3. Conditions of Effectiveness. This Waiver shall become effective as of the
date hereof, provided that Lender shall have received four (4) copies of this
Waiver executed by the Borrowers and the limited guarantors (each a "Limited
Guarantor") and the guarantor ("Guarantor") listed on the signature page hereto.
4. Representations, Warranties and Covenants. Each of the Borrowers hereby
represents, warrants and covenants as follows:
(a) This Waiver 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 Waiver, 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 Waiver.
(c) No Borrower has any defense, counterclaim or offset with respect to
the Loan Agreement or the Obligations.
5. 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) Except as set forth in Section 2 hereof, the execution, delivery
and effectiveness of this Waiver 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 Waiver 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).
7. Release. Borrowers and Guarantors hereby release, remise, acquit and forever
discharge Lender, Lender's employees, agents, representatives, consultants,
attorneys, fiduciaries, officers, directors, partners, predecessors, successors
and assigns, subsidiary corporations, parent corporations, and related corporate
divisions (all of the foregoing hereinafter called the "Released Parties"), from
any and all actions and causes of action, judgments, executions, suits, debts,
claims, demands, liabilities, obligations, damages and expenses of any and every
character, known or unknown, direct and/or indirect, at law or in equity, of
whatsoever kind or nature, for or because of any matter or things done, omitted
or suffered to be done by any of the Released Parties prior to and including the
date of execution hereof, and in any way directly or indirectly arising out of
or in any way connected to this Waiver or the Ancillary Agreements (all of the
foregoing hereinafter called the "Released Matters"). Borrowers acknowledge that
the agreements
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in this Section are intended to be in full satisfaction of all or
any alleged injuries or damages arising in connection with the Released Matters.
8. Headings. Section headings in this Waiver are included herein for convenience
of reference only and shall not constitute a part of this Waiver for any other
purpose.
9. Counterparts; Facsimile Signatures. This Waiver 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]
IN WITNESS WHEREOF, this Waiver has been duly executed as of the day and year
first written above.
XXXXXXX BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Its: Vice President
AGREED TO:
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SPAR MARKETING FORCE, INC.
SPAR, INC.
SPAR/XXXXXXXX RETAIL SERVICES, INC.
SPAR GROUP, INC.
SPAR INCENTIVE MARKETING, INC.
SPAR TRADEMARKS, INC.
SPAR MARKETING, INC. (DE)
SPAR MARKETING, INC. (NV)
SPAR ACQUISITION, INC.
SPAR TECHNOLOGY GROUP, INC.
SPAR/PIA RETAIL SERVICES, INC.
RETAIL RESOURCES, INC.
PIVOTAL FIELD SERVICES, INC.
PIA MERCHANDISING CO., INC.
PACIFIC INDOOR DISPLAY CO.
PIVOTAL SALES COMPANY
SPAR GROUP, INC.
SPAR ALL STORE MARKETING SERVICES, INC.
SPAR XXXX XXXX, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer of each of
the foregoing entities
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
CONSENTED AND AGREED TO BY:
---------------------------
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
XXXXXXX X. XXXXXXX, Limited Guarantor
/s/ Xxxxxx X. Xxxxx
------------------------------
XXXXXX X. XXXXX, Limited Guarantor
PIA MERCHANDISING LIMITED, Guarantor
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Its: Chief Financial Officer
