Exhibit 2.4
[Amended and Restated] Revolving Credit Note
$__,000,000.00 __________ __, _____
FOR VALUE RECEIVED, the undersigned, (collectively the "Borrowers"),
hereby jointly and severally promise to pay to the order of_____________________
(the "Bank"), by remittances to the Agent in accordance with the Agreement
(defined below), the principal amount of _______________ Million Dollars
($__,000,000.00), or such lesser amount as may be advanced by the Bank, in
lawful money of the United States of America in immediately available funds,
payable at the times, in the manner, and at the interest rates specified in the
Agreement.
This Note arises out of that certain Second Amended and Restated
Revolving Credit and Security Agreement dated as of May 16, 2002 among the
Borrowers, Wachovia Bank, National Association, formerly known as First Union
National Bank, as Agent and the Banks (as amended, the "Agreement") and is
subject in all respects to the terms of the Agreement. This Note is one of the
"Revolving Credit Notes" as defined in the Agreement. [This Note amends,
restates and supersedes that certain Revolving Credit Note in the amount of
$__________ dated __________ ___, _____ from certain of the Borrowers and their
Affiliates to the Bank. This Note shall not be a payment, satisfaction,
cancellation or novation of the Revolving Credit Note amended, restated and
superseded hereby.]
Terms used herein which are defined in the Agreement shall have their
defined meanings when used herein. The Agreement, among other things, contains
provisions for acceleration of the maturity of this Note upon the happening of
certain stated events and also for prepayments on account of principal hereof
prior to the maturity of this Note upon the terms and conditions specified in
the Agreement. This Note is secured by the Agreement, reference to which is
hereby made for a description of the Collateral provided for therein and the
rights of the Borrowers and the Bank with respect to such Collateral.
The Borrowers hereby waive presentment, demand for payment, notice of
dishonor or acceleration, protest and notice of protest, and any and all other
notices or demands in connection with the delivery, acceptance, performance,
default or enforcement of this Note, excepting any notice requirements set forth
in the Agreement.
JURISDICTION AND VENUE. IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE
RELATIONSHIP EVIDENCED HEREBY, EACH BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE COUNTY
OF PHILADELPHIA IN THE COMMONWEALTH OF PENNSYLVANIA AND AGREES NOT TO RAISE ANY
OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF
ANY SUCH PROCEEDING IN ANY SUCH COUNTY. EACH BORROWER AGREES THAT SERVICE OF
PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY
THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO THE BORROWER.
WAIVER OF JURY TRIAL. EACH BORROWER HEREBY WAIVES, AND THE BANK BY ITS
ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE
RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
BANK TO ACCEPT AND RELY UPON THIS NOTE.
CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A POWER OF
AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWERS. IN GRANTING
THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWERS, EACH BORROWER,
FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL FOR
SUCH BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY KNOWINGLY,
INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WAIVES ANY AND ALL
RIGHTS SUCH BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR
HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF
AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE INCLUDING, WITHOUT
LIMITATION, A HEARING PRIOR TO ATTACHMENT OF SUCH BORROWER'S BANK ACCOUNT AND
OTHER ASSETS. EACH BORROWER ACKNOWLEDGES AND UNDERSTANDS THAT BY EXECUTING THIS
NOTE CONTAINING A CONFESSION OF JUDGMENT CLAUSE THAT SUCH BORROWER IS
VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY GIVING UP ANY AND ALL RIGHTS, INCLUDING
CONSTITUTIONAL RIGHTS, THAT SUCH BORROWER HAS OR MAY HAVE TO NOTICE AND A
HEARING BEFORE JUDGMENT CAN BE ENTERED AGAINST SUCH BORROWER AND BEFORE SUCH
BORROWER'S ASSETS, INCLUDING, WITHOUT LIMITATION, ITS BANK ACCOUNTS, MAY BE
GARNISHED, LEVIED, EXECUTED UPON AND/OR ATTACHED. EACH BORROWER UNDERSTANDS THAT
ANY SUCH GARNISHMENT, LEVY, EXECUTION AND/OR ATTACHMENT SHALL RENDER THE
PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO
SUCH BORROWER. IT IS SPECIFICALLY ACKNOWLEDGED BY EACH BORROWER THAT THE BANK
HAS RELIED ON THIS WARRANT OF ATTORNEY AND THE RIGHTS WAIVED BY BORROWERS HEREIN
IN ENTERING INTO THE AGREEMENT AND AS AN INDUCEMENT TO GRANT FINANCIAL
ACCOMMODATIONS TO THE BORROWERS.
Upon the occurrence of an Event of Default, each Borrower hereby
jointly and severally authorizes and empowers any attorney of any court of
record or the prothonotary or clerk of any county in the Commonwealth of
Pennsylvania, or in any jurisdiction where permitted by law or the clerk of any
United States District Court, to appear for the Borrowers in any and all actions
which may be brought hereunder and enter and confess judgment against the
Borrowers or any of them in favor of the Bank for such sums as are due or may
become due hereunder or under any other Loan Documents, together with costs of
suit and actual collection costs including, without limitation, reasonable
attorneys' fees equal to 2% of the Obligations then due and owing but in no
event less than $5,000.00, with or without declaration, without prior notice,
without stay of execution and with release of all procedural errors and the
right to issue executions forthwith. To the extent permitted by law, each
Borrower waives the right of inquisition on any real estate levied on,
voluntarily condemns the same, authorizes the prothonotary or clerk to enter
upon the writ of execution this voluntary condemnation and agrees that such real
estate may be sold on a writ of execution; and also waives any relief from any
appraisement, stay or exemption law of any state now in force or hereafter
enacted. Each Borrower further waives the right to any notice and hearing prior
to the execution, levy, attachment or other type of enforcement of any judgment
obtained hereunder, including, without limitation, the right to be notified and
heard prior to the garnishment, levy, execution upon and attachment of
Borrower's bank accounts and other property. If a copy of this Note verified by
affidavit of any officer of the Bank shall have been filed in such action, it
shall not be necessary to file the original thereof as a warrant of attorney,
any practice or usage to the contrary notwithstanding. The authority herein
granted to confess judgment shall not be exhausted by any single exercise
thereof, but shall continue and may be exercised from time to time as often as
the Bank shall find it necessary and desirable and at all times until full
payment of all amounts due hereunder and under any other Loan Documents. The
Bank may confess one or more judgments in the same or different jurisdictions
for all or any part of the Obligations arising hereunder or under any other Loan
Documents to which any Borrower is a party, without regard to whether judgment
has theretofore been confessed on more than one occasion for the same
Obligations. In the event that any judgment confessed against any Borrower is
stricken or opened upon application by or on behalf of such Borrower or any
obligor for any reason, the Bank is hereby authorized and empowered to again
appear for and confess judgment against the Borrowers for any part or all of the
Obligations owing under this Note and/or for any other liabilities, as herein
provided.
This Note shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania (without giving effect to principles of
conflicts of laws).
EACH BORROWER ACKNOWLEDGES THAT THE RIGHTS WAIVED ABOVE ARE
CONSTITUTIONAL RIGHTS, THAT SUCH BORROWER HAS WAIVED SUCH RIGHTS INTENTIONALLY,
KNOWINGLY, AND AFTER CONSULTATION WITH ITS ATTORNEY, AND WAIVES SUCH RIGHTS
VOLUNTARILY.
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IN WITNESS WHEREOF, the Borrowers, intending to be legally bound, have
executed and delivered this Note on the date first above written.
MARLTON TECHNOLOGIES, INC., a Pennsylvania
corporation, successor to Marlton
Technologies, Inc., a New Jersey corporation
SPARKS EXHIBITS & ENVIRONMENTS CORP.
(formerly Sparks Exhibits Corp.), a
Pennsylvania corporation
SPARKS EXHIBITS & ENVIRONMENTS, INC.
(formerly Sparks Exhibits, Inc.), a Georgia
corporation
SPARKS EXHIBITS HOLDING CORPORATION, a
Delaware corporation
SPARKS EXHIBITS & ENVIRONMENTS, LTD.
(formerly Sparks Exhibits, Ltd.), a
California corporation
SPARKS EXHIBITS & ENVIRONMENTS INCORPORATED
(formerly Piper Productions, Inc.), a
Florida corporation
SPARKS EXHIBITS & ENVIRONMENTS COMPANY,
an Illinois corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title:
DMS STORE FIXTURES LLC (formerly DMS Store
Fixtures Corp.), a Pennsylvania limited
liability company
By: Sparks Exhibits & Environments Corp.,
its sole Member
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title:
