-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KzkWKu2guNGpii5a4UIYCDmFKTzmvmQFXjKzUzxtNKRb70RIlYTZO4tp7JSke81r 0pJjal9IbOzTEb1Pomg9Lg== 0001046211-04-000019.txt : 20040414 0001046211-04-000019.hdr.sgml : 20040414 20040414154138 ACCESSION NUMBER: 0001046211-04-000019 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 20031231 FILED AS OF DATE: 20040414 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MARLTON TECHNOLOGIES INC CENTRAL INDEX KEY: 0000096988 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 221825970 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-07708 FILM NUMBER: 04733028 BUSINESS ADDRESS: STREET 1: 2828 CHARTER RD STE 101 CITY: PHILADELPHIA STATE: PA ZIP: 19154 BUSINESS PHONE: 2156766900 MAIL ADDRESS: STREET 1: 2828 CHARTER RD CITY: PHILADELPHIA STATE: PA ZIP: 19154 FORMER COMPANY: FORMER CONFORMED NAME: TELESCIENCES INC DATE OF NAME CHANGE: 19880201 10-K 1 form10k-dec_03.txt FORM 10-K FOR YE 12/31/2003 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2003 Commission File Number 1-7708 MARLTON TECHNOLOGIES, INC. -------------------------- (Name of Registrant as specified in its charter)
Pennsylvania 22-1825970 - ------------------------------------------------------------ ----------------------------------------------- (State of incorporation) (IRS Employer Identification Number) 2828 Charter Road, Philadelphia, PA 19154 - ------------------------------------------------------------ ----------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (215) 676-6900 ----------------------------------------------- Securities registered pursuant to Section 12(b) of the Exchange Act:
Title of each class: Name of each exchange: --------------------------------- ------------------------------- Common Stock, no par value American Stock Exchange Securities registered pursuant to Section 12 (g) of the Exchange Act: None ---- Check whether the Registrant (1) filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter periods that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 Yes X No days. --- --- Check if there is no disclosure of delinquent filers in response to Item 405 of Regulation S-K contained in this Form 10-K and no disclosure will be contained, to the best of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. Check whether the Registrant is an accelerated filer (as defined in Rule 12b-2 of the Act). Yes No X --- --- The aggregate market value of the voting stock held by non-affiliates of the Registrant as of the last business day of the Registrant's most recently completed second fiscal quarter was $2,948,433. As of March 24, 2004 there were 12,844,696 shares of Common Stock, no par value, of the Registrant outstanding. DOCUMENTS INCORPORATED BY REFERENCE: The information required by Part III Items 10, 11, 12, 13 and 14 are hereby incorporated by reference to the Registrant's definitive proxy statement to be filed by April 29, 2004. Exhibit Index appears on Page 16 - ----------------------------------- ----- Page 1 of 42 PART I ITEM 1. BUSINESS -------- Business Development Marlton Technologies, Inc. (the "Company") is engaged in the custom design, production and sale of exhibits and environments for trade shows, museums, theme parks, themed interiors, arenas, corporate lobbies and retail stores for clients in industry, government, entertainment and commercial establishments. All of the Company's operating subsidiaries do business under the name Sparks Exhibits & Environments (collectively "Sparks"), except, DMS Store Fixtures ("DMS") which supplies custom made fixtures and displays to national retailers, department stores and consumer products manufacturers. Currently, all of the Company's operating revenues are derived from Sparks and DMS. In August 2003, the Company acquired the assets and specified liabilities of Exhibit Crafts, Inc., a designer and builder of trade show exhibits, retail displays and interior environments. As part of that transaction, the Company also acquired a minority equity interest in International Expo Services, Inc., a tradeshow freight and installation and dismantle services provider with facilities in the Los Angeles area and in Las Vegas, which was affiliated with Exhibit Crafts. Subsequently the Company consolidated its San Diego area Sparks production operations into the Exhibit Crafts facility in the metropolitan Los Angeles area. Business Description Products and Services The Company's current business is the custom design, production and sale of exhibits and environments for trade shows, museums, theme parks, themed interiors, arenas, corporate lobbies and retail stores for clients in industry, government, entertainment and commercial establishments. The Company manages custom trade show projects from concept through final construction, employing sophisticated graphics and exhibit designers and computer-aided design software and hardware. In-house facilities provide a wide range of computerized design and production of graphics. Electronics and audiovisual capabilities include on-staff electronic specialists and vendor relationships which provide multi-media equipment and programs, interactive program production and customized applications. The Company provides full service trade show exhibit services, including coordination, refurbishing, shipping, storage and marketing literature distribution. Many clients are Fortune 1000 firms, who typically contract for custom trade show exhibit projects costing in excess of $200,000. Additionally, a majority of these clients store their trade show exhibits at a Company facility, and the Company provides ongoing refurbishing and coordination of clients' trade show schedules. The Company also represents domestic clients who desire to exhibit at international trade shows. The Company designs such exhibits, and through Sparks Europe or an international network of independent exhibit manufacturers, arranges for the manufacture and delivery of trade show exhibits to the desired trade show. The Company also designs and manufactures trade show exhibits for a number of United States subsidiaries of foreign corporations for use in domestic trade shows. In addition, the Company produces sophisticated themed exhibits for educational and entertainment venues such as museums and theme parks. Typically, the customer or its design firm prepares the design which the Company fabricates using carpentry, sculpture, metal working and scenic artist skills. The Company also supplies custom store fixtures, showcases and point of purchase displays for retailers, having the expertise and capability to take a design from concept to installation. Engineers and designers work with the customers to develop the fixture design through computer aided design equipment. Engineering drawings are then produced and provided to third-party manufacturers with whom the Company has developed long-standing business relationships for the production of its products. These manufacturers work closely with an experienced Company project management team. Custom store fixture opportunities include outfitting new retail stores and remodeling existing stores, such as specialty apparel chains, department stores, specialty electronics stores and outlet stores. 3 Marketing and Distribution Sales by the Company to domestic customers for both domestic and international use are solicited through internal sales and marketing groups. Purchase of sophisticated exhibits and environments usually involves a substantial expenditure by the customer, and significant expertise is required to properly meet the customer's needs. Sales personnel are required to be knowledgeable with respect to the design and manufacturing of sophisticated exhibits and environments. Sales are typically made directly to the end user of the product or service. In addition to sales personnel, senior officers devote substantial attention to sales and marketing activities. Manufacturing and Raw Materials The Company designs and manufactures custom trade show exhibits utilizing an in-house staff of designers, carpenters, electricians and warehouse employees. Specialty items such as studio production are subcontracted. The Company also subcontracts the manufacture of exhibits for foreign trade shows. The Company coordinates shipping, exhibit set-up and removal at the customer's trade show and, in most cases, subsequently stores the exhibit for the customer. For store fixture and display products, the Company subcontracts the manufacture and installation, using a network of manufacturers. Raw materials for custom and portable exhibits, store fixtures and displays, as well as subcontractors for specialty work, have historically been available on commercially reasonable terms from various vendors. Portable exhibit configurations, together with graphics, are typically designed by the Company for a client and are purchased from portable exhibit manufacturers for resale. Graphics may be produced internally or subcontracted. Geographic distribution rights are typically granted by portable exhibit manufacturers based on annual sales volume levels. The Company has obtained such distribution rights in certain geographic areas from Abex Display Systems Inc., its primary source of portable exhibits. The Company holds a 25% equity interest in Abex. Seasonality of Business Trade shows typically occur regularly throughout the year with the exception of the third quarter when business to business trade shows are traditionally at a low point. Trade show activities in specific industries, such as health care and telecommunications, tend to be a function of seasonal show schedules within those industries. The custom store fixture business tends to be slower during the fourth and first quarters due to retailers' desires not to install or plan new fixtures during their traditionally busy year-end season. The Company seeks new clients and sales people with client bases in different industries to reduce the effects of the slower sales periods. Additionally, the Company offers other products and services, such as sales of scenic and themed exhibits, portable/modular exhibits, and permanent exhibits which tend to be less seasonal in nature, and in certain cases, manufacturing can be spread over longer periods of time. Working Capital The Company's working capital requirements are fulfilled by funds generated through operations and a revolving credit facility. Working capital requirements are generally not affected by project size requirements or accelerated delivery for major trade show exhibit, scenic and themed exhibit customers due to general policies of progress billing on larger jobs. However, working capital requirements are affected by the sale of custom store fixtures which are generally produced upon receipt of purchase orders from large retailers, but are held in inventory and are not billed to the customer until delivery. Significant Customers One customer, JCPenney, accounted for 15% of the Company's consolidated net sales in 2003. The loss of this customer would have a material adverse effect on the Company. Backlog The backlog of orders at December 31, 2003 and 2002 was approximately $19 million. Generally, backlog of orders are recognized as sales during the subsequent six month period. The current backlog relates primarily to expected 2004 sales. The Company maintains a client base from which new orders are continually generated, including refurbishing of existing trade show exhibits stored in the Company's facilities, large retailers opening or refurbishing stores, and longer term museum projects. 4 Competition The Company competes with numerous other companies offering similar products and providing similar services, on the basis of price, quality, performance, financial resources, and client-support services. The custom trade show exhibit, scenic and themed exhibit, permanent exhibit, retail store fixture and display, and portable exhibits sales markets include a large number of national and regional companies, some of which have substantially greater sales and resources than the Company. In addition to its domestic manufacturing facilities, the Company utilizes its national and international affiliations and relationships to meet customers needs in other locales. Due to the lack of specific public information, the Company's competitive position is difficult to ascertain. Environmental Protection The Company's compliance with federal, state and local provisions regulating discharge of materials into the environment or otherwise relating to the protection of the environment has not had, and is not expected to have, a material adverse effect upon its capital expenditures, earnings or competitive position. Employees The total number of persons employed by the Company is approximately 236 of which approximately 234 are full-time employees. The Philadelphia, Pennsylvania operations have a three-year labor contract expiring June 30, 2004, and a three-year labor contract expiring December 31, 2004, covering an aggregate of approximately 35 production and fulfillment employees. The Santa Fe Springs, California operation has a two-year labor contract expiring August 31, 2005, covering approximately 40 production workers. Web Site Address The Company's web site address is www.marltontechnologies.com. ITEM 2. PROPERTIES ---------- The Company currently leases four primary facilities as follows: Location Square Footage Purpose -------- ------------- -------
Philadelphia, PA 250,000 Office, showroom, warehouse & manufacturing Santa Fe Springs, CA 91,000 Office, warehouse & manufacturing Austell, GA 98,000 Office, warehouse & manufacturing El Cajon, CA 84,000 Warehouse
The Company's subsidiaries also have sales, design and project management offices in the Orlando, Florida, and San Francisco, California, metropolitan areas. The Company's office, showroom, warehouse and manufacturing facilities were all in good condition and adequate for 2003, based on normal five-day operations, and are anticipated to be adequate for operations in 2004, including any foreseeable internal growth. The El Cajon, California facility was vacated in August 2003 in connection with the Company's relocation and consolidation of its West Coast operations (see Note 2 to the consolidated financial statements). The Company currently leases 109,000 square feet from its landlord but has subleased 25,000 square feet of this facility to an unrelated entity for the remainder of the lease term. The Company is working with the landlord to find tenants for the remaining 84,000 square feet. Currently a new tenant is under agreement to take 38,000 square feet of this space. The Santa Fe Springs, California facility consists of two buildings of 91,000 and 31,000 square feet which are jointly leased with International Expo Services, Inc. ("IES"), an installation and dismantle company in which the Company holds a minority equity interest. The Company occupies and pays rent on the 91,000 square foot building, and IES occupies and pays rent on the 31,000 square foot building. 5 ITEM 3. LEGAL PROCEEDINGS ----------------- The Company from time to time is a defendant and counterclaimant in various lawsuits that arise out of, and are incidental to, the conduct of its business. The resolution of pending legal matters should not have a material adverse effect upon the financial position of the Company. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS --------------------------------------------------- Not applicable. 6 PART II ------- ITEM 5 MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES. The following table shows the high and low sales prices of the Common Stock on the American Stock Exchange: 2003 2002 ---- ---- Quarter High Low High Low ------- ---- --- ---- --- 1 $.30 $.18 $.58 $.36 2 .40 .29 .65 .44 3 .77 .40 .46 .20 4 .79 .42 .40 .12 No dividends were paid during the past two fiscal years. The Company currently intends to employ all available funds in the business. Future dividend policy will be determined in accordance with the financial requirements of the business. However, the Company's loan agreement provides that the Company may not pay dividends to its shareholders without the lender's prior written consent and also provides restrictions on the ability of the Company's subsidiaries to transfer funds to the Company in the form of dividends, loans or advances. As of March 24, 2004 there were 966 holders of record of the Company's Common Stock. Equity Compensation Plan Information as of December 31, 2003 ------------------------------------------------------------
Number of securities Weighted-average exercise Number of securities to be issued upon price of outstanding remaining available exercise of options, warrants and for future issuance outstanding options, rights under compensation under equity Plan category warrants and rights plans compensation plans ----------------------- --------------------------- ----------------------- Equity Compensation plans approved by security holders 1,759,578 (1) $0.61 373,758 (1) Equity Compensation plans not approved by security holders 15,500 $2.13 735,000 (2) Total 1,775,078 $0.63 1,108,758
1. The Company's 2001 Equity Incentive Plan provides for the issuance to employees, directors and consultants of stock options or restricted shares for up to an aggregate of 2,000,000 shares of Common Stock, 373,758 of which remain available for future issuance. Any new director of the Company receives a stock option award of 100,000 shares with an exercise price equal to the fair market value on the date of grant, vesting 50% initially and 25% at each of the next two Company annual meetings based on continued service as a director, and expiring after a period of five years. Included in the number of securities to be issued upon exercise are shares issued under the Company's 1990 Incentive Plan and 1992 Directors' and Consultants' Stock Option Plan, under which plans no more shares can be issued. 2. The Company's 2000 Equity Incentive Plan provides for the issuance to employees, outside directors and consultants of stock options, stock appreciation rights and/or stock units for up to an aggregate of 735,000 shares of Common Stock, 735,000 of which remain available for future issuance. Other options have been issued to employees as an incentive to accept employment with the Company in an amount not in excess of 5% of the Company's outstanding shares of Common Stock. For additional information, see Note 15 to consolidated financial statements. 7 ITEM 6. SELECTED FINANCIAL DATA ----------------------- SELECTED FINANCIAL DATA For the years ended December 31 (in thousands except per share amounts)
2003 2002 2001 2000 1999 ---- ---- ---- ----- ---- TOTAL ASSETS $24,818 $25,609 $49,442 $63,508 $60,319 LONG-TERM OBLIGATIONS 5,146 4,000 6,635 16,376 11,157 WORKING CAPITAL 2,996 3,461 6,872 15,370 11,151 STOCKHOLDERS' EQUITY 7,140 9,342 (2)(3) 29,176 27,906 28,811 OPERATIONS: Net sales 65,587 71,182 76,972 92,533 94,584 Operating profit (loss) (2,155) (1) (1,132) (115)(4) 60 3,053 Net income (loss) before change in accounting principle (2,201) (1) (7,414)(2) $(1,136)(4) $(1,106) $809 (5) Net income (loss) after change in accounting principle (2,201) (1) (19,799)(3) $(1,136)(4) $(1,106) $809 (5) BASIC NET INCOME (LOSS) PER COMMON SHARE BEFORE CHANGE IN ACCOUNTING PRINCIPLE (6) $(.17) $(.57) $(.14) $(.15) $.11 DILUTED NET INCOME (LOSS) PER COMMON SHARE BEFORE CHANGE IN ACCOUNTING PRINCIPLE (7) $(.17) $(.57) $(.14) $(.15) $.10 BASIC NET INCOME (LOSS) PER COMMON SHARE AFTER CHANGE IN ACCOUNTING PRINCIPLE (6) $(.17) $(1.52) $(.14) $(.15) $.11 DILUTED NET INCOME (LOSS) PER COMMON SHARE AFTER CHANGE IN ACCOUNTING PRINCIPLE (7) $(.17) $(1.52) $(.14) $(.15) $.10 CASH DIVIDENDS -0- -0- -0- -0- -0- ----------- ----------- ---------- ---------- ------------
1. Includes a $1.1 million restructuring provision for facility relocation, and a $0.3 million expense for a terminated merger transaction. 2. Includes a $1.2 million write-down in the Company's investment in an affiliate, and $5.4 million for a valuation allowance for deferred income taxes. 3. Includes a $12.4 million impairment loss (net of a $3.5 million income tax benefit) for a change in accounting principle (adoption of SFAS No. 142, "Goodwill and Other Intangible Assets"). 4. Includes an inventory provision of $0.7 million ($0.5 million after income taxes) for a customer that filed for Chapter 11, and relocation costs and operating losses of $0.6 million ($0.4 million after income taxes) for the Company's Orlando, Florida manufacturing operations. 5. Includes an impairment loss of $465,000 ($279,000 after income taxes) for a write-down of the Company's investment in Abex Europe. 6. Basic per common shares amounts are computed using the weighted average number of common shares outstanding during the year. 7. Diluted per common share amounts are computed using the weighted average number of common shares outstanding during the year and dilutive potential common shares. Dilutive potential common shares consist of stock options and stock warrants, calculated using the treasury stock method. 8 ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS INTRODUCTION The Company's business is the custom design, production and sale of exhibits and environments for trade shows, museums, theme parks, themed interiors, arenas, corporate lobbies and retail stores for clients in industry, government, entertainment and commercial establishments. Challenges of the past year included the relocation and consolidation of the Company's West Coast operations and a terminated merger agreement discussed below. In addition, on February 6, 2004 the Company replaced its credit facility that would have expired on May 16, 2004 with a new facility expiring on February 6, 2007. The trade show exhibit industry continues to be very competitive and several of the Company's competitors have filed for Chapter 11. In addition, the Company's customer base of primarily Fortune 1000 companies is expected to continue to closely manage their trade show budgets. This budget management will put pressure on sales and margins for trade show exhibits and related services. The Company is negotiating better pricing and terms with its suppliers and pursuing staff and cost reduction initiatives to mitigate the impact of this industry trend. RESULTS OF OPERATIONS 2003 as Compared With 2002 Net Sales - --------
(in thousands) Revenue Sources 2003 2002 - --------------- ---- ---- Trade show exhibits $40,457 $ 44,711 Permanent and scenic displays 25,130 26,471 ------ ------ Total $65,587 $71,182 ====== ======
Total net sales of $65.6 million for 2003 decreased $5.6 million, or 8%, from total net sales for 2002. This decrease was comprised of a $4.3 million, or 10%, decrease in sales of trade show exhibits and related services and a $1.3 million, or 5%, decrease in sales of permanent and scenic displays. Selling prices were relatively constant in 2003 and 2002. Lower sales of trade show exhibits and related services were primarily due to reductions in certain customers' trade show marketing budgets, which led to cancelled and reduced participation in trade shows that these customers attended in the past. The sales decrease for permanent and scenic displays was principally attributable to lower sales of store fixtures to national retail customers. Gross Profit - ------------ Gross profit, as a percentage of net sales, improved to 21.9% in 2003 from 19.9% in 2002. This improvement was largely due to profit improvement initiatives implemented in the second half of 2002, which were realized for the full year in 2003. Management continues to pursue cost reduction initiatives, including operational improvements, supplier renegotiations and staff reductions to offset the impact of lower sales volume. Selling Expenses - ---------------- Selling expenses were $8.5 million in 2003 and in 2002. As a percentage of net sales, these expenses increased to 13% in 2003 from 11.9% in 2002. The percentage increase was due, in large part, to the impact of lower sales volume as compared with certain fixed selling expenses such as sales office and salary expenses. Cost reduction initiatives implemented near the end of 2003 are expected to reduce selling expenses in 2004. 9 Administrative and General Expenses - ----------------------------------- Administrative and general expenses of $6.9 million for 2003 increased 1.6% from such expenses of $6.8 million for 2002. The Company and Redwood Acquisition Corp. ("Redwood") entered into a merger agreement in February 2003 pursuant to which all of the outstanding shares of common stock of the Company (other than the shares held by approximately eight shareholders) would be converted into the right to receive $0.30 per share. On June 19, 2003, the Company's Board of Directors approved a termination proposal submitted by Redwood, which terminated the proposed merger agreement with Redwood. Costs of approximately $250,000 incurred in connection with this proposed merger agreement were charged to administrative and general expenses in the second and third quarters of 2003. The increase in general and administrative expenses was primarily due to these costs incurred in connection with this terminated merger transaction, integration costs to consolidate the Company's West Coast operations and higher insurance and telecommunications costs. During the fourth quarter of 2003, management implemented executive compensation reductions, staff reductions and further cost cutting initiatives in response to lower sales volume. Restructuring and other Expense - ------------------------------- On August 1, 2003, a Company subsidiary acquired the assets of Exhibit Crafts, Inc., a Los Angeles, CA area manufacturer of trade show exhibits and a 20% interest in International Exposition Services, Inc., (IES), a trade show shipping and installation provider. The initial purchase price was $694,000, including the assumption of certain liabilities totaling $310,000. In addition, the sellers received 20% of the subsidiary's common stock. The purchase price approximated the fair value of the net assets acquired. In addition, the asset purchase agreement provides for contingent aggregate payments of up to $750,000 based on operating performance in 2004, 2005 and 2006. The Company relocated its San Diego area manufacturing facility to the newly acquired Los Angeles, CA area facility during the third quarter of 2003. Costs incurred in connection with this relocation and consolidation were approximately $1.1 million, which included relocation and employee termination expenses and the Company recorded a charge for a portion of the remaining lease obligation related to the vacated San Diego area facility. Operating Loss - -------------- The Company incurred an operating loss of $2.2 million in 2003 primarily due to lower volume and the restructuring costs for the relocation and consolidation of its West Coast operations. Other Income (Expense) - --------------------- Interest expense decreased to $236,000 in 2003 from $382,000 in 2002 due in part to lower borrowings and to lower interest rates. In the fourth quarter of 2003, the Company recorded an impairment loss of $259,000 related to the investment in its Sparks Europe affiliate. Benefit From Income Taxes - ------------------------- In the third quarter of 2003, the Company recognized the benefit of an income tax refund for $0.4 million related to a change in strategy whereby a net operating loss was carried back to a prior year. In the fourth quarter of 2002, the Company established a valuation allowance for deferred income tax assets. As a result, the Company did not record an income tax benefit from the current period pre-tax loss. Backlog - ------- The backlog of orders at December 31, 2003 and 2002 was approximately $19 million. Generally, backlog of orders are recognized as sales during the subsequent six month period. The current backlog relates primarily to expected 2004 sales. The Company maintains a client base from which new orders are continually generated, including refurbishing of existing trade show exhibits stored in the Company's facilities. 10 2002 As Compared With 2001 Net Sales - --------- (in thousands) Revenue Sources 2002 2001 ---- ---- Trade show exhibits $ 44,711 $ 49,992 Permanent and scenic displays 26,471 26,980 ------ ------ Total $71,182 $ 76,972 ====== ====== Total net sales of $71.2 million for 2002 decreased 8% from total net sales for 2001. Sales of trade show exhibits and related services decreased 10.6% primarily due to the loss of two trade show exhibit clients and generally weak economic conditions. Sales of permanent and scenic displays decreased 1.9%, which was the net result of lower store fixtures sales partially offset by higher permanent museum display sales. Gross Profit - ------------ Gross profit, as a percentage of net sales, decreased to 19.9% in 2002 as compared with 22.2% in 2001. This decrease was principally attributable to lower gross profit margins for store fixtures and to shifts in sales mix to lower margin sales categories. The DMS store fixtures business had an unfavorable impact on the Company's gross profit in 2002. Selling Expenses - ---------------- Selling expenses of $8.5 million decreased to 11.9% of net sales in 2002 from $9.8 million, or 12.7% of net sales in 2001. This decrease was largely due to higher permanent museum exhibit sales, which are subject to lower sales commission expense, and to lower commission expense for store fixtures sales. Administrative and General Expenses - ----------------------------------- Administrative and general expenses were reduced to $6.8 million in 2002 from $7.4 million in 2001. This decrease was primarily due to the adoption of a new accounting principle discussed below, which eliminated goodwill amortization in 2002. Goodwill amortization in 2001 was $0.8 million. In connection with the DMS Store Fixtures acquisition, employment agreements were made with two shareholders of the Company, which provided for guaranteed minimum annual payments of approximately $0.5 million. These agreements were mutually terminated in January 2001 eliminating the guaranteed minimum payments after February 2, 2001, which reduced administrative and general expenses by approximately $0.5 million in the first quarter of 2001. Operating Loss - -------------- The Company reported an operating loss of $1.1 million for 2002 as compared with an operating loss of $0.1 million for 2001. The increase in operating loss was principally attributable to lower sales and the lower gross profit percentage in 2002. The Company's DMS Store Fixtures business unit generated significantly lower operating profit (loss) in 2002 as compared with 2001. Based on these results and projections for 2003, an impairment loss of $176,000, included as a component of the operating loss, was recognized for the net book value of remaining long-term assets for this business unit. Other Income (Expense) - --------------------- Interest expense decreased to $0.4 million in 2002 from $1.2 million in 2001 as a result of lower borrowings and lower interest rates. 11 In the first quarter of 2002, management determined that the Company's investment in a portable tradeshow exhibit manufacturer was not recoverable, which resulted in an impairment loss of $1.2 million from investments in affiliates. A loss of $0.3 million was recognized in 2001 for a write-down of the Company's investment in its Sparks Europe affiliate. Provision for (benefit from) income taxes - ----------------------------------------- The Company established a valuation allowance of $5.4 million for deferred income tax assets in the fourth quarter of 2002, principally related to a deferred income tax benefit in connection with the write off of goodwill recorded in the first quarter of 2002. The Company also established a valuation allowance for the income tax benefit from the $1.2 million write down of investments in affiliates recorded in the first quarter of 2002 because this capital loss is not expected to be offset by capital gains within the required statutory period. The provision for income taxes recorded in the first quarter of 2002 also included a valuation allowance of $191,000 related to a 1999 capital loss incurred in connection with the Company's investment in a United Kingdom affiliate. Cumulative effect of change in accounting principle - --------------------------------------------------- In July 2001, the Financial Accounting Standards Board ("FASB") issued Statement of Financial of Accounting Standards ("SFAS") No. 142 "Goodwill and Other Intangible Assets" (SFAS 142), which supercedes APB No. 17 "Intangible Assets". SFAS 142 requires that goodwill no longer be amortized to earnings, but instead be reviewed for impairment. The Company adopted SFAS 142 effective January 1, 2002. This new accounting standard requires a two-step test for operating units having unamortized goodwill balances. The first step requires a comparison of the book value of the net assets to the fair value of the respective operating unit. If the fair value is determined to be less than the book value, a second step is required to determine the impairment. This second step includes evaluation of other intangible assets, and any shortfall of the adjusted book value below fair value determines the amount of the goodwill impairment. Goodwill amortization expense was $0.8 million in 2001 and in 2000. The adoption of SFAS 142 reduced goodwill by $15.9 million and net income by $12.4 million (net of a $3.5 million income tax benefit) in the first quarter of 2002, identified as a cumulative effect of a change in accounting principle. This impairment charge related to goodwill recorded in connection with the December 31, 1997 acquisition of DMS Store Fixtures, L.P. This charge differs from the previous accounting standard method, which was based on undiscounted cash flows, because the new method is based on fair value measurement estimates as of the measurement date. Backlog - ------- The backlog of orders at December 31, 2002 and 2001 was approximately $19 million and $13 million, respectively. The backlog increase is principally attributable to a higher level of open orders for permanent and scenic displays and new customers. Generally, backlog of orders are recognized as sales during the subsequent six month period. The Company maintains a client base from which new orders are continually generated, including refurbishing of existing trade show exhibits stored in the Company's facilities. LIQUIDITY AND CAPITAL RESOURCES On May 16, 2003, the Company amended its Revolving Credit and Security Agreement (the "Facility") with its bank to change from and Earnings Before Interest, Taxes, Depreciation and Amortization ("EBITDA") basis to an asset-based arrangement. The Facility provided for borrowing of up to $8 million based on a percentage of qualified accounts receivable and inventories. The Facility was collateralized by all the Company's assets and had interest at rates based primarily on the London Inter Bank Offering Rate (LIBOR) plus 3.25%. The Facility included certain financial covenants requiring a minimum tangible net worth and maintenance of certain financial ratios and restricted the Company's ability to pay dividends. Borrowings under this Facility were $4.9 million at December 31, 2003. On February 6, 2004, the Company replaced the Facility with a new credit facility provided by a commercial asset-based lender. The new credit facility, which expires on February 6, 2007, provides for borrowing capacity of up to $12 12 million based on a percentage of eligible accounts receivable and inventories. This new facility bears interest based on the 30-day dealer placed commercial paper rate plus 4.50% (effective rate of 5.51% at February 6, 2004), restricts the Company's ability to pay dividends, and includes certain financial covenants (fixed charge coverage ratio and maximum capital expenditure amount of $1 million in 2004 and $1.25 million in 2005 and in 2006). The Company's borrowing capacity was $7 million at March 4, 2004. Proceeds from this credit facility are used primarily for working capital and other capital purposes. The Company's working capital decreased to $3 million at December 31, 2003 from $3.5 million at December 31, 2002, largely due to a $0.6 million decrease in cash and cash equivalents. Available cash and proceeds of $0.9 million from the Company's credit facility were used for the acquisition discussed ($0.4 million) and for capital expenditures ($0.9). The Company has lease commitments for certain facilities under non-cancelable operating leases. Timing of future lease commitments as well as maturities of long-term debt are as follows:
Payment due by period --------------------- Less than 1-3 3-5 More than Contractual Obligations Total 1 Year Years Years 5 Years ----------------------- ----- ------ ----- ----- -------- Long-Term Debt Obligations $ 5,235 $ 89 $5,146 $ -- $-- Capital Lease Obligations -- -- -- -- -- Operating Lease Obligations 8,237 2,267 4,910 1,060 -- Purchase Obligations -- -- -- -- -- Other Long-Term Liabilities Reflected on the Registrant's Balance Sheet Under GAAP -- -- -- -- -- ------ ----- ----- ----- ---- Total $13,472 $2,356 $10,056 $1,060 $-- ====== ===== ====== ===== ====
The Company jointly leases a 31,000 square foot facility with International Expo Services, in which the Company holds a minority interest. The annual lease commitment for this facility is $214,000 through September 22, 2007, which is not included with the above future operating lease commitments. The Company leases a facility from a partnership controlled by two shareholders of the Company. This lease, which contains a renewal option on May 14, 2009 and expires on May 14, 2019, requires minimum annual rent of $771,000 (included in the table above) at a fixed rate for the first 10 years, and the Company is responsible for taxes, insurance and other operating expenses. OUTLOOK The Company expects combined sales of trade show exhibits and of permanent and scenic displays in 2004 to decrease from 2003 levels. The Company's trade show exhibit client base of Fortune 1000 companies is expected to closely manage their marketing budgets, which would inhibit the Company's trade show exhibit sales and margins. The Company expects sales of store fixtures to increase in 2004 from 2003 levels. The Company continues to explore new sales opportunities while pursuing operating efficiency improvements and cost reduction initiatives to mitigate the impact of lower sales volume. RECENTLY ISSUED ACCOUNTING STANDARDS In June 2002, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards ("SFAS") No. 146, "Accounting for Exit or Disposal Activities" ("SFAS 146"). Statement of Financial Accounting Standards ("SFAS") 146 addresses significant issues regarding the recognition, measurement, and reporting of costs associated with exit and disposal activities, including restructuring activities that are currently accounted for pursuant to the guidance that the Emerging Issues Task Force ("EITF") has set forth in EITF Issue No. 94-3, "Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring)." Effective in the first quarter of 2003, the Company adopted the provisions of SFAS 146. This new accounting principle had an impact on the timing and recognition of costs associated with the Company's relocation and consolidation of its West Coast operations (see Note 2). In 2003, the FASB issues FASB Interpretation No. 46, "Consolidation of Variable Interest Entities" ("FIN 46") and its amendment FIN 46R. This interpretation clarifies existing accounting principles related to the preparation of 13 consolidated financial statements when the equity investors in an entity do not have the characteristics of a controlling financial interest or when the equity at risk is not sufficient for the entity to finance its activities without additional subordinated financial support. FIN 46R requires a company to evaluate all existing arrangements to identify situations where a company has a "variable interest" in a "variable interest entity" and further determine when such variable interests require a company to consolidate the variable interest entities' financial statement with its own. The Company adopted the provisions of FIN 46 in connection with the lease agreement with a related partnership and determined that there was no impact on its financial statements as a result of the adoption of this new accounting principle. In May 2003, the FASB issued SFAS No. 150, "Accounting For Certain Financial Instruments with Characteristics of both Liabilities and Equity" ("SFAS 150"). SFAS 150 addresses the classification and measurement of certain financial instruments with characteristics of both liabilities and equity. The Company will continue to evaluate the impact of SFAS 150 on its financial statements. CRITICAL ACCOUNTING POLICIES Financial statement preparation in conformity with generally accepted accounting principles requires management to make assumptions and estimates that affect the reported amounts of assets and liabilities. One such estimate is possible losses in connection with financing accounts receivable. Management estimates these possible losses based on a review of the financial condition and payment history of specific customers having significant accounts receivable balances, and establishes a general reserve for the remaining accounts receivable based on historical bad debt experience. Revenues on trade show exhibit sales, themed interiors, custom store fixtures and point of purchase displays are recognized using the completed contract method. The Company's contracts are typically less than three months in duration. As a result, the Company's revenue recognition would not differ materially if another method were used. Progress billings are generally made throughout the production process. Progress billings which are unpaid at the balance sheet date are not recognized in the financial statements as accounts receivable. Progress billings which have been collected on or before the balance sheet date are classified as customer deposits and are included in accrued expenses and other current liabilities. Measurement of goodwill and other intangible asset impairment involves assumptions and estimates by management on a quarterly basis. The adoption of SFAS 142 requires estimates of fair values for certain operating units. These estimates involve discounted cash flow forecasts to determine the fair value of operating units having unamortized goodwill balances, and also considers the Company's market capitalization. The evaluation of deferred income tax assets also involves managements estimates and judgment. Management considers several factors in this evaluation, including trailing three year financial performance history and future forecasts of operating income. A valuation allowance is established based on management's estimates about the recoverability of deferred income tax assets. Other significant accounting policies are also important to the understanding of the Company's financial statements. These policies are discussed in Note 1 to the consolidated financial statements. FORWARD-LOOKING STATEMENTS This report contains forward-looking statements. When used in this report, the words "intends," "believes," "plans," "expects," "anticipates," "probable," "could" and similar words are used to identify these forward looking statements. In connection with the "safe harbor" provisions of the Private Securities Litigation Reform Act of 1995, there are certain important factors that could cause the Company's actual results to differ materially from those included in such forward-looking statements. Some of the important factors which could cause actual results to differ materially from those projected include, but are not limited to: the Company's ability to continue to identify and enter new markets and expand existing business; continued availability of financing to provide additional sources of funding for capital expenditures, working capital and investments; the effects of competition on products and pricing; growth and acceptance of new product lines through the Company's sales and marketing programs; changes in material and labor prices from suppliers; changes in customers' financial condition; the Company's ability to attract and retain competent employees; the Company's ability to add and retain customers; changes in sales mix; the Company's ability to integrate and upgrade technology; uncertainties regarding accidents or litigation which may arise; the financial impact of facilities consolidations; uncertainties about the impact of the threat of future terrorist attacks on business travel and related trade show 14 attendance; and the effects of, and changes in the economy, monetary and fiscal policies, laws and regulations, inflation and monetary fluctuations as well as fluctuations in interest rates, both on a national and international basis. ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK --------------------------------------------------------- Fluctuations in interest, foreign currency exchange rates and commodity prices do not significantly affect the Company's financial position and results of operations. The Company's revolving credit facility, bears an interest rate based on 30-day dealer placed commercial paper rate, plus 4.5%. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA ------------------------------------------- The financial statements, together with the report of the Company's independent accountants thereon, are presented under Item 15 of this report. ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ------------------------------------------------ ACCOUNTING AND FINANCIAL DISCLOSURE ----------------------------------- On November 17, 2003, the Company dismissed PricewaterhouseCoopers LLP ("PwC") as its independent public accountants and appointed McGladrey and Pullen, LLP ("McGladrey") as its new independent public accountant. The decision to dismiss PwC and to retain McGladrey was approved by the Company's Audit Committee and Board of Directors on November 17, 2003. The reports of PwC on the Company's financial statements for each of the years ended December 31, 2002 and 2001 did not contain an adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope or accounting principles. During the Company's two most recent fiscal years and through November 17, 2003 there were no disagreements with PwC on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements if not resolved to PwC's satisfaction, would have caused PwC to make reference to the subject matter of the disagreement in connection with its reports. During the Company's two most recent fiscal years and through November 17, 2003, there have been no reportable events (as defined in Regulation S-K Item 304 (a) (1) (v)). The Company provided PwC with a copy of this disclosure and requested that PwC review such disclosure and provide a letter addressed to the Securities and Exchange Commission as specified by Item 304(a) (3) of Regulation S-K. Such letter was filed as Exhibit 16.1 to the Company's Current Report on Form 8-K dated November 17, 2003. During the fiscal years ended December 31, 2002 and 2001, and the subsequent interim period up to November 17, 2003, the Company did not consult with McGladrey regarding (i) the application of accounting principles to a specified transaction, either completed or proposed, (ii) the type of audit opinion that might be rendered on the Company's financial statements, or (iii) any other matters or reportable events set forth in Items 304 (a) (1) (iv) and (a) (1) (v) of Regulation S-K. ITEM 9A. CONTROLS AND PROCEDURES ----------------------- As of the end of the period covered by this report, the Company carried out an evaluation, under the supervision and with the participation of the Company's management, including the Company's Chief Executive Officer and the Company's Chief Financial Officer, of the effectiveness of the design and operation of the Company's disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities and Exchange Act of 1934, as amended). Based on this evaluation, the Company's Chief Executive Officer and Chief Financial Officer concluded that the Company's disclosure controls and procedures were effective, except as discussed in the next paragraph below, in timely alerting them to material information relating to the Company required to be included in the Company's periodic filings with the Securities and Exchange Commission. 15 There was no change in the Company's internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Securities and Exchange Act of 1934, as amended) during the Company's most recently completed fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting. Subsequent to the end of the quarter, management determined that the Company's internal controls were insufficient to prevent the Company's Chief Executive Officer from causing the Company, through adjustments to accounting records and otherwise, to confer unauthorized benefits upon himself or upon his behalf. A report prepared by an independent law firm retained by the audit committee (which report noted that the Chief Executive Officer's conduct may have been illegal,) concluded that the amounts involved were relatively minor. The level of benefits so obtained did not exceed $60,000. All of such benefits have been repaid by the Chief Executive Officer. The Company has taken a number of steps to improve the control environment including requiring additional written approvals for (i) increases in employee compensation, (ii) authorization of travel and (iii) adjustments to accounting entries related to employee compensation. PART III Items 10, 11, 12, 13 and 14 have been omitted from this report, in accordance with General Instruction G (3). Such information is incorporated by reference from the Company's definitive proxy statement to be filed with the SEC by April 29, 2004. 16 PART IV ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K ---------------------------------------------------------------
Exhibit Page (a) The following documents are filed as part of this report: ------------ (1) Financial Statements: Report of Independent Accountants, McGladrey & Pullen, LLP. 21 ------------- Report of Independent Accountants, PricewaterhouseCoopers LLP. 22 ------------- Consolidated Statements of Operations for the years ended December 31, 2003, 2002 and 2001. 23 ------------- Consolidated Balance Sheets at December 31, 2003 and 2002. 24 ------------- Consolidated Statements of Changes in Stockholders' Equity for the years ended December 31, 2003, 2002 and 2001. 25 ------------- Consolidated Statements of Cash Flows for the years ended December 31, 2003, 2002 and 2001. 26 ------------- Notes to Consolidated Financial Statements. 27 ------------- (2) Financial Statements Schedule: Valuation and Qualifying Accounts and Reserves: 41 -------------
(3) Exhibits: (2)(a) Agreement and Plan of Merger of the Company (Incorporated by reference to the Company's Proxy Statement dated September 27, 2001, filed with the Commission). (3)(i) Articles of Incorporation of the Company (Incorporated by reference to the Company's Proxy Statement dated September 27, 2001, filed with the Commission). 3(ii) Amended and Restated By-laws of the Company (Incorporated by reference to Exhibit 3(ii)(a) of the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2002, filed with the Commission). 10(a) Amended and Restated Employment Agreement dated November 20, 2001 between the Company and Robert B. Ginsburg (Incorporated by reference to the Company's September 27, 2001 Proxy Statement, filed with the Commission).* 10(b) Employment Agreement dated 11/20/01 between the Company and Jeffrey K. Harrow (Incorporated by reference to the Company's September 27, 2001 Proxy Statement, filed with the Commission).* 10(c) Employment Agreement dated 11/20/01 between the Company and Scott Tarte (Incorporated by reference to the Company's September 27, 2001 Proxy Statement, filed with the Commission).* 10(d) Form of Warrants issued by the Company to Jeffrey K. Harrow, Scott Tarte, Robert B. Ginsburg and Alan I. Goldberg on 11/20/01 (Incorporated by reference to the Company's September 27, 2001 Proxy Statement, filed with the Commission). Schedule of grants (Incorporated by reference to Exhibit 10(f) to the Company's Annual Report on Form 10-K for the year ended December 31, 2001, filed with the Commission). 17 10(e) Stockholders' Agreement date 11/20/01 among Jeffrey K. Harrow, Scott Tarte, Robert B. Ginsburg and the Company (Incorporated by reference to the Company's September 27, 2001 Proxy Statement, filed with the Commission). 10(f) Registration Rights Agreement dated 11/20/01 among Jeffrey K. Harrow, Scott Tarte, Robert B. Ginsburg, Alan I. Goldberg and the Company (Incorporated by reference to the Company's September 27, 2001 Proxy Statement, filed with the Commission).
10(g) Amended Agreement of Employment, dated December 11, 1992, between the Company and Alan I. Goldberg. * 43 ------------- 10(h) Letter Agreement dated January 2, 1998 to Amended Employment Agreement with Alan I. Goldberg (Incorporated by reference to Exhibit 7(2) to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998, filed with the Commission at: www.sec.gov/cgi-bin/srch-edgar?test=Marlton+Technologies&first=1993&last=2004&mode=Simple).*
10(i) Letter Agreement dated 11/20/01 to Amended Employment Agreement with Alan I. Goldberg. (Incorporated by reference to Exhibit 10(k) to the Company's Annual Report on Form 10-K for the year ended December 31, 2001, filed with the Commission).* 10(j) Employment Agreement dated November 24, 1999 with Stephen P. Rolf (Incorporated by reference to Exhibit 10(l) to the Company Annual Report of Form 10-K for the year ended December 31, 1999, filed with the Commission).* 10(k) Option Agreement dated January 10, 2000 with Stephen P. Rolf (Incorporated by reference to Exhibit 10(x) to the Company Quarterly Report on Form 10-Q for the quarter ended June 30, 2000, filed with the Commission).* 10(l) Option Agreements with Outside Directors (Incorporated by reference to Company Proxy Statement dated April 30, 1999, filed with the Commission).* 10(m) Option Agreements dated August 7, 2000 with Outside Directors (Incorporated by reference to Exhibit 10(x) to the Company Quarterly Report on Form 10-Q for the quarter ended June 30, 2000, filed with the Commission).* 10(n) Option Agreements dated March 1, 2002 with Outside Directors (Incorporated by reference to Exhibit 10(e) to the Company's Annual Report on Form 10-K for the year ended December 31, 2001, filed with the Commission).* 10(o) 2000 Equity Incentive Plan (Incorporated by reference to Exhibit 10(n) to the Company's Annual Report on Form 10-K for the year ended December 31, 2001, filed with the Commission).* 10(p) 2001 Equity Incentive Plan (Incorporated by reference to Exhibit 10(ee) to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2001, filed with the Commission).* 10(q) Lease for Premises located at 2828 Charter Road, Philadelphia, PA dated May 14, 1999 (Incorporated by reference to Exhibit 10(f) to the Company Annual Report on Form 10-K for the year ended December 31, 1999, filed with the Commission). 10(r) Amendment to Lease 2828 Charter Road, Philadelphia, PA dated February 25, 2000 (Incorporated by reference to 18 Exhibit 10(g) to the Company Annual Report on Form 10-K for the year ended December 31, 1999, filed with the Commission).
10(s) Lease for Premises located at 8125 Troon Circle, Austell, GA 30001. 49 ------------- 10(t) Lease Agreement dated June 29, 1998 between Gillespie Field Partners, LLC and Sparks Exhibits, Ltd. (Incorporated by reference to Exhibit 7(2) to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1998, filed with the Commission at www.sec.gov/cgi-bin/srch-edgar?test=Marlton+Technologies&first=1993&last=2004&mode=Simple). 10(u) Loan and Security Agreement dated as of February 6, 2004 with General Electric Capital Corporation. 66 -------------
10(v) Option Agreement dated June 3, 2002 with Robert B. Ginsburg (Incorporated by reference to Exhibit 10(cc) to the Company`s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002, filed with the Commission).* 10(w) Option Agreement dated June 3, 2002 with Alan I. Goldberg (Incorporated by reference to Exhibit 10(dd) to the Company`s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002, filed with the Commission).* 10(x) Option Agreement dated October 23, 2002 with Washburn Oberwager (Incorporated by reference to Exhibit 10ee) to the Company`s Quarterly Report on Form 10-Q for the quarter ended September 30, 2002, filed with the Commission).* 10(y) Fourth Amendment to Lease Agreement dated September 11, 2003 for premises located at 8125 Troon Circle, Austell, GA 30001 (Incorporated by reference to Exhibit 10(cc) to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2003, filed with the Commission). 10(z) Sublease Agreement with Bradco International for premises located at 2025 Gillespie Way, El Cajon, CA 92020. (Incorporated by reference to Exhibit 10(dd) to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2003, filed with the Commission). 10(aa) First Amendment to Lease Agreement dated October 31, 2003 for premises located at 2025 Gillespie Way, El Cajon, CA 92020 (Incorporated by reference to Exhibit 10 (ee) to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2003, filed with the Commission).
10(bb) Second Amendment to and Partial Termination of Lease Agreement dated January 1, 2004 for premises located at 2025 Gillespie Way, El Cajon, CA 92020 122 ------------- 10(cc) Lease Agreement, First and Second Amendments for premises located at Building J, 10232 Palm Drive, Santa Fe Springs, CA 90670 (Incorporated by reference to Exhibit 10(ff) to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2003, filed with the Commission). 10(dd) Lease Agreement, First and Second Amendments for premises located at Building G, Heritage Springs Business Park, Santa Fe Springs (Incorporated by reference to Exhibit 10(gg) to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2003, filed with the Commission). 14 Code of Ethics 128 ------------- 21 Subsidiaries of the Company 130 -------------
19
31(a) Rule 13a - 14(a) / 15(d) - 14(a) Certification, Chief Executive Officer 131 ------------- 31(b) Rule 13a - 14(a) / 15(d) - 14(a) Certification, Chief Financial Officer 132 ------------- 32 Section 1350 Certifications 133 -------------
* Management contract or compensatory plan or arrangement. (b) Reports on Form 8-K One report on Form 8-K dated November 17, 2003 was filed by the Company during the last quarter of the period covered by this report on Form 10-K, reporting changes in the Company's certifying accountant. 20 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. MARLTON TECHNOLOGIES, INC. By: /s/ Robert B. Ginsburg ------------------ Robert B. Ginsburg, President By: /s/ Stephen P. Rolf --------------- Stephen P. Rolf, Chief Financial Officer Dated: April 14, 2004 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Company and in the capacities and on the dates indicated.
Signature Title Date /s/ Jeffrey K. Harrow Chairman of the April 14, 2004 ----------------- Board of Directors Jeffrey K. Harrow /s/ Scott J. Tarte Vice Chairman of the April 14, 2004 -------------- Board of Directors Scott J. Tarte /s/ A.J. Agarwal Director April 14, 2004 ------------ A. J. Agarwal /s/ Robert B. Ginsburg Director April 14, 2004 ------------------ Robert B. Ginsburg /s/ Alan I. Goldberg Director April 14, 2004 ---------------- Alan I. Goldberg /s/ Jerome Goodman Director April 14, 2004 -------------- Jerome Goodman /s/ Wasburn Oberwager Director April 14, 2004 ------------------ Washburn Oberwager /s/ Richard Vague Director April 14, 2004 ------------- Richard Vague
21 INDEPENDENT ACCOUNTANTS' REPORT Board of Directors and Stockholders Marlton Technologies, Inc. Philadelphia, Pennsylvania We have audited the accompanying consolidated balance sheet of Marlton Technologies, Inc. and subsidiaries as of December 31, 2003 and the related consolidated statements of operations, changes in stockholders' equity and cash flows for the year then ended. Our audit also included the financial statement schedule for the year ended December 31, 2003 listed in the Index at Item 15. These financial statements and financial statement schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements and financial statement schedule based on our audit. We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion. In our opinion, the December 31, 2003 financial statements referred to above present fairly, in all material respects, the financial position of Marlton Technologies, Inc.and subsidiaries as of December 31, 2003 and the results of their operations and their cash flows for the year then ended in conformity with accounting principles generally accepted in the United States of America. Also, in our opinion, such financial statement schedule for the year ended December 31, 2003, when considered in relation to the basic financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein. /s/ McGladrey & Pullen, LLP Blue Bell, Pennsylvania March 19, 2004 22 REPORT OF INDEPENDENT ACCOUNTANTS To the Stockholders and Board of Directors of Marlton Technologies, Inc. In our opinion, the consolidated financial statements listed in the index appearing under Item 15(a)(1) on page 16, present fairly, in all material respects, the financial position of Marlton Technologies, Inc. and its subsidiaries at December 31, 2002, and the results of their operations and their cash flows for each of the two years ended December 31, 2002 in conformity with accounting principles generally accepted in the United States of America. In addition, in our opinion, the financial statement schedule listed in the index appearing under Item 15(a)(2) presents fairly, in all material respects, the information set forth therein when read in conjunction with the related consolidated financial statements. These financial statements are the responsibility of the Company's management; our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with auditing standards generally accepted in the United States of America, which require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. As discussed in Note 4, the Company adopted a new financial accounting standard during 2002. /s/ PricewaterhouseCoopers LLP Philadelphia, Pennsylvania March 21, 2003 23 MARLTON TECHNOLOGIES, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS For the years ended December 31, (in thousands except per share amounts)
2003 2002 2001 ---- ---- ---- Net sales $65,587 $ 71,182 $ 76,972 Cost of sales 51,203 57,027 59,917 ------ ------ ------ Gross profit 14,384 14,155 17,055 ------ ------ ------ Selling expenses 8,518 8,491 9,761 Administrative and general expenses 6,907 6,796 7,409 Restructuring and other expenses 1,114 - - ------ ------ ------ 16,539 15,287 17,170 ------- ------ ------ Operating loss (2,155) (1,132) (115) ------- ------ ------ Other income (expense): Interest and other income 21 42 134 Interest expense (236) (382) (1,220) Loss from investment in affiliates (265) (1,156) (397) ------ ------ ------ (480) (1,496) (1,483) Net loss before income taxes and change ----- ------ ----- in accounting principle (2,635) (2,628) (1,598) Provision for (benefit from) income taxes (434) 4,786 (462) ----- ----- ----- Net loss before change in accounting principle (2,201) (7,414) (1,136) Cumulative effect of change in accounting principle, net of tax benefit - (12,385) - Net loss after change in accounting principle $(2,201) $ (19,799) $ (1,136) ====== ====== ===== Net loss per common share before change in accounting principle: Basic $ (0.17) $ (0.57) $ (0.14) ====== ====== ====== Diluted $ (0.17) $ (0.57) $ (0.14) ====== ====== ====== Net loss per common share after change in accounting principle: Basic $ (0.17) $ (1.52) $ (0.14) ====== ====== ====== Diluted $ (0.17) $ (1.52) $ (0.14) ====== ====== ====== The accompanying notes to the consolidated financial statements are an integral part of these financial statements.
23 MARLTON TECHNOLOGIES, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS December 31, (in thousands except share and per share amounts)
ASSETS 2003 2002 ---- ---- Current: Cash and cash equivalents $ 241 $ 880 Accounts receivable, net of allowance of $415 and $309, respectively 7,824 8,083 Inventories 6,272 5,723 Prepaid and other current assets 1,191 1,042 ------ ------ Total current assets 15,528 15,728 Investment in affiliates - 259 Property and equipment, net of accumulated depreciation 3,240 3,929 Rental assets, net of accumulated depreciation 2,789 2,535 Goodwill 2,714 2,714 Other assets, net of accumulated amortization of $1,603 and $1,349, respectively 388 211 Notes receivable 159 233 ------ ------ Total assets $ 24,818 $ 25,609 ====== ====== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Current portion of long-term debt $ 89 $ 128 Accounts payable 6,363 4,509 Accrued expenses and other current liabilities 6,080 7,630 ------ ------ Total current liabilities 12,532 12,267 Long-term liabilities: Long-term debt, net of current portion 5,146 4,000 ------ ------ Total liabilities 17,678 16,267 ------ ------ Commitments and contingencies (Note 13) Stockholders' equity: Preferred stock, $.10 par - shares authorized 10,000,000; no shares outstanding - - Common stock, no par value - shares authorized 50,000,000; 12,844,696 outstanding at December 31, 2003; 12,845,096 outstanding at December 31, 2002 - - Stock warrants 742 742 Additional paid-in capital 32,951 32,951 Accumulated deficit (26,405) (24,204) ------ ------ 7,288 9,489 Less cost of treasury shares; 148,803 shares at December 31, 2003 and 148,403 at December 31, 2002 (148) (147) ----- ----- Total stockholders' equity 7,140 9,342 ------ ------ Total liabilities and stockholders' equity $ 24,818 $ 25,609 ====== ======
The accompanying notes to the consolidated financial statements are an integral part of these financial statements. 24 MARLTON TECHNOLOGIES, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY For the years ended December 31, 2003, 2002 and 2001 (in thousands except share amounts)
Common Stock Additional ------------ Paid-in Stock Shares Amount Capital Warrants ------ ------ ------- -------- Balance, December 31, 2000 7,423,429 $ 743 $ 30,544 $ - Issuance of shares under compensation arrangements 265,070 26 108 - Issuance of shares for investment transaction 5,300,000 530 1,000 - Issuance of stock warrants - - - 742 Change from $.10 par value to no par value Common Stock - (1,299) 1,299 - Net loss - - - - ---------- ------ ------ ---- Balance, December 31, 2001 12,988,499 - 32,951 742 Repurchase of common stock (143,403) - - - Net loss - - - - ---------- ----- ------- ----- Balance, December 31, 2002 12,845,096 - 32,951 742 Repurchase of common stock (400) - - - Net loss - - - - ----------- ----- ------- ----- Balance, December 31, 2003 12,844,696 $ - $ 32,951 $ 742 =========== ===== ======= ===== The accompanying notes to the consolidated financial statements are an integral part of these financial statements.
25 (CON'T) MARLTON TECHNOLOGIES, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY For the years ended December 31, 2003, 2002 and 2001 (in thousands except share amounts)
Total Accumulated Treasury Stockholders' Deficit Stock Equity ------------ --------- ------------- Balance, December 31, 2000 $ (3,269) $ (112) $ 27,906 Issuance of shares under compensation arrangements - - 134 Issuance of shares for investment transaction - - 1,530 Issuance of stock warrants - - 742 Change from $.10 par value to no par value Common Stock - - - Net loss (1,136) - (1,136) --------- ----- ------ Balance, December 31, 2001 (4,405) (112) 29,176 Repurchase of common stock - (35) (35) Net loss (19,799) - (19,799) --------- ----- ------- Balance, December 31, 2002 (24,204) (147) 9,342 Repurchase of common stock - (1) (1) Net loss (2,201) - (2,201) --------- ----- ------ Balance, December 31, 2003 $ (26,405) $ (148) $ 7,140 ========= ====== ====== The accompanying notes to the consolidated financial statements are an integral part of these financial statements.
25 MARLTON TECHNOLOGIES, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS for the years ended December 31, (in thousands)
2003 2002 2001 ---- ---- ---- Cash flows provided from operating activities: Net loss $ (2,201) $ (19,799) $ (1,136) Adjustments to reconcile net income to cash provided by (used in) operating activities: Depreciation and amortization 2,088 2,185 2,646 Impairment loss from investments in affiliates 259 1,156 397 Net changes in deferred taxes - 4,766 (562) Cumulative effect of change in accounting principle - 12,385 - Property and equipment asset impairment - 175 - Non-cash compensation and other operating items (54) - 89 Losses from asset disposals 238 - - Change in assets and liabilities: Decrease in accounts receivable, net 355 2,563 9,374 (Increase) decrease in inventories (219) 875 2,320 (Increase) decrease in prepaid and other assets (122) 205 1,748 (Increase) decrease in notes and other receivables (183) 544 94 Increase in accounts payable, accrued expenses and other (189) (1,368) (5,663) ------ ----- ----- Net cash provided by (used in) operating activities (28) 3,687 9,307 ------ ----- ----- Cash flows from investing activities: Guaranteed payments to sellers - - (18) Acquisition of business, net of cash acquired (384) - - Capital expenditures (914) (1,269) (1,653) ----- ----- ----- Net cash used for investing activities (1,298) (1,269) (1,671) ----- ----- ----- Cash flows from financing activities: Proceeds from (payments for) revolving credit facility, net 947 (2,500) (9,500) Proceeds from issuance of stock, net of related costs - - 2,272 Payments for loan origination fees (108) (105) (60) Payments for notes payable, sellers - (33) (54) Proceeds from (payments for) promissory note, net (128) (98) 190 Payments for acquisition obligation (3) - - Payments for leasehold improvement obligation (20) - - Repurchase of common stock (1) (35) - ------ ----- ----- Net cash provided by (used in) financing activities 687 (2,771) (7,152) ------ ----- ----- Increase (decrease) in cash and cash equivalents (639) (353) 484 Cash and cash equivalents - beginning of year 880 1,233 749 ----- ----- ----- Cash and cash equivalents - end of year $ 241 $ 880 $ 1,233 ===== ===== =====
The accompanying notes to the consolidated financial statements are an integral part of these financial statements. 26 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. SUMMARY OF ACCOUNTING POLICIES ------------------------------ Basis of Presentation The consolidated financial statements include the accounts of Marlton Technologies, Inc., its wholly and majority owned subsidiaries and the effects of minority investments in non-consolidated businesses (the "Company"). Investments in affiliates, representing the Company's 20% or more but less than 50% investments are accounted for using the equity method. All inter-company accounts and transactions are eliminated. Activity included in the consolidated statements of operations consists primarily of the custom design, production and sale of exhibits and environments for trade shows, museums, theme parks, themed interiors, arenas, corporate lobbies and retail stores for clients in industry, government, entertainment and commercial establishments. The Company operates in one segment. Cash Equivalents The Company considers all investments with an initial maturity of three months or less to be cash equivalents. Temporary cash investments comprise principally short-term government funds. At various times throughout the year, the Company maintains cash balances at banking institutions in excess of FDIC limits. Account Receivable Accounts receivable are carried at original invoice amount less an estimate made for doubtful receivables based on a review of all outstanding amounts on a quarterly basis. Management estimates these possible losses based on a review of the financial condition and payment history of specific customers having significant accounts receivable balances, and establishes a general reserve for the remaining accounts receivable based on historical bad debt experience. Accounts receivable are written off when deemed uncollectible. Recoveries of accounts receivables previously written off are recorded when received. A trade receivable is considered to be past due if any portion of the receivable balance is outstanding for more than 90 days. Interest is not charged on trade receivables that are considered past due. Inventories Inventories are stated at the lower of cost (first-in, first-out) or market and include materials, labor and manufacturing overhead costs. Long-Lived Assets Property and equipment are stated at cost. Depreciation is provided on the straight-line method over the estimated useful lives of the respective assets, ranging primarily from 3 to 10 years. Assets and accumulated depreciation accounts are reduced for the sale or other disposition of property, and the resulting gain or loss is included in income. Rental assets, which include manufactured and purchased exhibit components, are stated at cost. Depreciation for rental assets is recorded on a straight-line basis over seven years. Prior to January 1, 2002 the excess of cost over the fair value of net assets acquired (goodwill) was amortized on a straight-line basis over periods ranging from 5 to 30 years. After January 1, 2002, no amortization is recorded for these assets. Included in other assets are loan origination fees, which are amortized on a straight-line basis over the term of the related debt agreement. The Company's policy is to record an impairment loss against long-lived assets, including investment in affiliates, property and equipment, goodwill and other 27 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS intangibles, in the period when it is determined that the carrying amount of such assets may not be recoverable. This determination includes evaluation of factors such as current market value, future asset utilization, business climate and future undiscounted cash flows expected to result from the use of the net assets. For the fourth quarter of 2003, the Company recorded an impairment loss of $259,000 related to the investment in its Sparks Europe affiliate. During 2002, the Company recorded an impairment loss of $176,000 associated with the property and equipment of its DMS subsidiary. Revenue Recognition Revenues on trade show exhibit sales, themed interiors, custom store fixtures and point of purchase displays are recognized using the completed contract method. The Company's contracts are typically less than three months in duration. As a result, the Company's revenue recognition would not differ materially if another method were used. Progress billings are generally made throughout the production process. Progress billings which are unpaid at the balance sheet date are not recognized in the financial statements as accounts receivable. Progress billings which have been collected on or before the balance sheet date are classified as customer deposits and are included in accrued expenses and other current liabilities. Billings for shipping and handling are recorded as revenue and the related costs are included in the cost of sales. Income Taxes The Company recognizes deferred tax assets and liabilities based upon the future tax consequences of events that have been included in the financial statements or tax returns. Deferred tax assets and liabilities are calculated based on the difference between the financial reporting and tax bases of assets and liabilities using the currently enacted tax rates in effect during the years in which the differences are expected to reverse. A valuation allowance is established based on the future recoverability of deferred tax assets. Use of Estimates The preparation of financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results may differ from those estimates. Concentration of Credit Risk The Company's financial instruments that are exposed to concentrations of credit risk consist primarily of cash and cash equivalents and trade accounts receivable. The Company places its cash and temporary cash investments with high quality financial institutions. The Company's accounts receivable are primarily with customers throughout the United States. The Company performs ongoing credit evaluations of its customers' financial condition and generally requires progress payments which mitigate its loss exposure. One customer, JCPenney, accounted for 15%, 20% and 11% of the Company's consolidated net sales in 2003, 2002, and 2001, respectively. The loss of this customer could have a material adverse effect on the Company. Stock-Based Compensation Compensation cost for stock options is measured as the excess, if any, of the quoted market price of the Company's stock at the date of grant above the amount an employee must pay to acquire the stock granted under the option. The Company adopted the disclosure - only provisions of SFAS 123, "Accounting for Stock-Based Compensation." The Company will continue to apply the provisions of Accounting Principles Board Opinion 25 in accounting for its stock option plans. If the Company had elected to recognize compensation cost based on the fair value of the options granted at grant date as prescribed by SFAS 123, net income and diluted income per common share would have been reduced to the pro forma amount as follows: 28 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(in thousands except per share amounts) Year ended December 31, 2003 2002 2001 ---- ---- ---- Net loss As reported $(2,201) $(19,799) $(1,136) Deduct: Total stock-based employee ----- ------ ----- compensation expense determined under fair value based method, net of tax (67) (290) (16) ----- ------ ----- Pro forma $(2,268) $(20,089) $(1,152) Diluted income (loss) ===== ====== ===== per common share As reported $(.17) $(1.52) $(.14) Pro forma ===== ====== ===== $(.18) $(1.55) $(.14) ===== ====== =====
The fair value of each option grant is estimated on the date of the grant using the Black-Scholes option-pricing model. Assumptions used to calculate the fair value of option grants in 2002 and 2001 include the following:
Assumption 2002 2001 ---------- ---- ---- Dividend yield 0.0% 0.0% Risk-free rate 4.0% 5.0% Expected life 3-5 years 3-5 years Expected volatility 62% 65% Fair Value $.18 $.05
Fair Value of Financial Instruments Financial instruments consist of cash and cash equivalents and long-term debt. The recorded values of cash and cash equivalents approximate their fair value due to the short maturity of these instruments. The fair value of long-term debt is estimated based on current interest rates offered to the Company for similar remaining maturities. The recorded value of these financial instruments approximate their fair value at December 31, 2003 and 2002. Per Share Data Basic net income per common share is calculated using the average shares of common stock outstanding, while diluted net income per common share reflects the potential dilution that could occur if stock options and warrants having exercise prices below market prices were exercised. Recently Issued Accounting Standards In June 2002, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards ("SFAS") No. 146, "Accounting for Exit or Disposal Activities" ("SFAS 146"). Statement of Financial Accounting Standards ("SFAS") 146 addresses significant issues regarding the recognition, measurement, and reporting of costs associated with exit and disposal activities, including restructuring activities that are currently accounted for pursuant to the guidance that the Emerging Issues Task Force ("EITF") has set forth in EITF Issue No. 94-3, "Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring)." Effective in the first quarter of 2003, the Company adopted the provisions of SFAS 146. This new accounting principle had an impact on the timing and recognition of costs associated with the Company's relocation and consolidation of its West Coast operations (see Note 2). In 2003, the FASB issues FASB Interpretation No. 46, "Consolidation of Variable Interest Entities" ("FIN 46") and its amendment FIN 46R. This interpretation 29 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS clarifies existing accounting principles related to the preparation of consolidated financial statements when the equity investors in an entity do not have the characteristics of a controlling financial interest or when the equity at risk is not sufficient for the entity to finance its activities without additional subordinated financial support. FIN 46R requires a company to evaluate all existing arrangements to identify situations where a company has a "variable interest" in a "variable interest entity" and further determine when such variable interests require a company to consolidate the variable interest entities' financial statement with its own. The Company adopted the provisions of FIN 46 in connection with the lease agreement with a related partnership and determined that there was no impact on its financial statements as a result of the adoption of this new accounting principle. In May 2003, the FASB issued SFAS No. 150, "Accounting For Certain Financial Instruments with Characteristics of both Liabilities and Equity" ("SFAS 150"). SFAS 150 addresses the classification and measurement of certain financial instruments with characteristics of both liabilities and equity. The Company will continue to evaluate the impact of SFAS 150 on its financial statements. 2. ACQUISITION AND RESTRUCTURING COSTS ----------------------------------- On August 1, 2003, a Company subsidiary acquired the assets of Exhibit Crafts, Inc., a Los Angeles, CA area manufacturer of trade show exhibits and a 20% interest in International Exposition Services, Inc., (IES), a trade show shipping and installation provider. The initial purchase price was $694,000, including the assumption of certain liabilities totaling $310,000. In addition, the sellers received 20% of the Company subsidiary's common stock. The purchase price approximated the fair value of the net assets acquired. In addition, the asset purchase agreement provides for contingent payments of up to $750,000 based on operating performance in 2004, 2005 and 2006. The Company relocated its San Diego area manufacturing facility to the newly acquired Los Angeles, CA area facility during the third quarter of 2003. Costs incurred in connection with this relocation and consolidation were approximately $1.1 million, which included relocation and employee termination expenses and the Company recorded a charge for a portion of the remaining lease obligation related to the vacated San Diego area facility. 3. TERMINATED MERGER AGREEMENT: ---------------------------- The Company and Redwood Acquisition Corp.("Redwood") entered into a merger agreement in February 2003 pursuant to which all of the outstanding shares of common stock of the Company (other than the shares held by approximately eight shareholders) would be converted into the right to receive $0.30 per share. On June 19, 2003, the Company's Board of Directors approved a termination proposal submitted by Redwood, which terminated the proposed merger agreement with Redwood. Costs of approximately $250,000 incurred in connection with this proposed merger agreement were charged to administrative and general expenses in the second and third quarters of 2003. 4. ACCOUNTING CHANGE (ADOPTION OF SFAS NO. 142) Effective January 1, 2002, the Company adopted Statement of Financial Accounting Standards No. 142, "Goodwill and Other Intangible Assets" (SFAS 142), which eliminates amortization of these assets and requires annual testing for impairment. The Company's reporting units for purposes of applying the provisions of SFAS 142 are the DMS Store Fixtures business ("DMS") and the Sparks Exhibits & Environments businesses ("Sparks"). SFAS 142 requires a comparison of the reporting unit's fair value, which is determined based on discounted cash flows, to its carrying value to determine potential impairment. If the fair value is less than the carrying value, an impairment loss is recognized. 30 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS The following table reconciles net income and net income per share for 2002 and - ------------------------------------------------------------------------------- 2001 adjusted for SFAS 142 - --------------------------
December 31, ------------ 2003 2002 2001 ---- ---- ---- (in thousands except per share amounts) Net loss before change in accounting principle $(2,201) $(7,414) $(1,136) Add back: goodwill amortization, net of tax of $272 -- -- 559 ------ ------- ------- Adjusted net loss before change in accounting principle $(2,201) $(7,414) $ (577) ====== ======= ======= Cumulative effect of change in accounting principle, net of tax of $3,500 -- (12,385) -- ------ ------- ------- Adjusted net loss $(2,201) $(19,799) $ (577) ====== ======= ======= Net income per share: Basic net loss per share before change in accounting principle $(.17) $(.57) $(.14) Add back: goodwill amortization, net of tax -- -- .07 ------ ------- ------ Adjusted basic net loss per share before accounting change $(.17) $(.57) $(.07) Cumulative effect of change in accounting principle, net of tax -- (.95) -- ------ ------- ------ Adjusted basic net loss per share $(.17) $(1.52) $(.07) ====== ======= ====== Diluted net loss per share before change in accounting principle $(.17) $(.57) $(.14) Add back: goodwill amortization, net of tax -- -- .07 Adjusted diluted net loss per share before accounting change ----- ------- ------ $(.17) $(.57) $(.07) Cumulative effect of accounting change, net of tax -- (.95) -- ----- ------- ------ Adjusted diluted net loss per share $(.17) $(1.52) $(.07) ===== ======= ======
Changes in the carrying amount of goodwill for the impairment recognized in 2002 are as follows:
DMS Sparks Total --- ------ ----- Balance at December 31, 2001 $ 15,885 $ 2,714 $8,599 Goodwill impairment in 2002 (15,885) -- (15,885) ------ ------ ------ Balance at December 31, 2002 -- $ 2,714 $2,714 ====== ====== ====== Goodwill impairment in 2003 -- -- -- ------ ------ ------ Balance at December 31, 2003 -- $ 2,714 $2,714 ====== ====== ======
31 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 5. NET INCOME PER COMMON SHARE The following table sets forth the computation of basic and diluted net income per common share:
(in thousands except per share data) 2003 2002 2001 ---- ---- ---- Net loss before change in accounting principle $(2,201) $(7,414) $(1,136) ====== ====== ====== Net loss after change in accounting principle $(2,201) $(19,799) $(1,236) ====== ====== ====== Weighted average common shares outstanding used to compute basic net income per common share 12,845 12,984 8,167 Additional common shares to be issued assuming exercise of stock options, net of shares assumed reacquired - - 220 Total shares used to compute diluted net income per common share 12,845 12,984 8,387 ====== ====== ===== Basic net loss per share before change in accounting principle $(.17) $(.57) $(.14) Diluted net loss per share before change in ====== ====== ====== accounting principle $(.17) $(.57) $(.14) ====== ====== ====== Basic net loss per share after change in accounting principle $(.17) $(1.52) $(.14) Diluted net loss per share after change in ====== ===== ====== accounting principle $(.17) $(1.52) $(.14) ====== ===== ======
Options and warrants to purchase 7,175,000, 7,492,000, and 667,000 shares of common stock at prices ranging from $.50 per share to $6.25 per share were outstanding at December 31, 2003, 2002 and 2001, respectively, but were not included in the computation of diluted income per common share because the options' and warrants' exercise price was equal to or greater than the average market price of the common shares. 6. STATEMENTS OF CASH FLOWS INFORMATION Cash paid for interest in 2003, 2002, and 2001 was $250,000, $314,000 and $1,250,000, respectively. Cash paid for income taxes in 2002 and 2001 was $5,000 and $29,000, respectively. During 2001, the Company issued 265,070 shares of its common stock having a market value of $134,000 to certain employees and directors for stock awards and the Company's 401(k) plan contributions. 32 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 7. INVENTORIES, NET Inventories at December 31 consist of the following: (in thousands) ------------ 2003 2002 ---- ---- Raw materials $ 467 $ 373 Work in process 3,579 4,400 Finished goods 2,226 950 ----- ----- $ 6,272 $5,723 ===== ===== 8. INVESTMENT IN AFFILIATES ------------------------ The Company recognized an impairment loss of $259,000 in the fourth quarter of 2003 related to its investment in Sparks Europe. The Company recognized an impairment loss of approximately $1.2 million in the first quarter of 2002 related to its investment in Abex Display Systems Inc. 9. PROPERTY AND EQUIPMENT ---------------------- Property and equipment at December 31 consist of the following:
(in thousands) ------------ 2003 2002 ---- ---- Manufacturing equipment and vehicles $2,017 $1,964 Office equipment and data processing 8,357 7,409 Leasehold improvements 2,578 3,017 Showroom exhibits, construction in progress and other 394 707 ------ ------ $13,346 $13,097 Less accumulated depreciation and amortization 10,106 9,168 ------ ------ $ 3,240 $3,929 ====== ====== Rental assets at December 31 consist of the following: Rental assets $6,461 $5,735 Less accumulated depreciation 3,672 3,200 ------ ----- $2,789 $2,535 ====== =====
10. ACCRUED EXPENSES AND OTHER -------------------------- Accrued expenses and other at December 31, consist of the following:
(in thousands) ------------ 2003 2002 ---- ---- Customer deposits $2,955 $3,530 Accrued compensation 934 1,232 Accrued payroll, sales and business taxes 134 807 Accrued insurance costs -- 150 Accrued contractual costs 116 291 Accrued restructuring expenses 402 -- Other 1,539 1,620 ----- ----- $6,080 $7,630 ===== =====
33 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 11. DEBT OBLIGATIONS AND SUBSEQUENT EVENT On May 16, 2002, the Company amended its Revolving Credit and Security Agreement (the "Facility") to change from an EBITDA basis to an asset-based arrangement. The amended Facility provided for borrowings based on a percentage of qualified accounts receivable and a percentage of up to $6.7 million of qualified inventories. The Facility was collateralized by all the Company's assets and had interest at rates based primarily on the London Inter Bank Offering Rate (LIBOR) plus 3.25%. The Facility included certain financial covenants requiring a minimum tangible net worth and maintenance of certain financial ratios and restricted the Company's ability to pay dividends. Borrowings under this Facility were $4.9 million at December 31, 2003. The Company's borrowing capacity under the Facility was $8 million at December 31, 2003. The interest rates charged during 2003 ranged from 4.28% to 4.63%. The Company had a letter of credit in the amount of $160,000 outstanding at December 31, 2003, which was collateralized by a cash escrow account on January 26, 2004 in connection with the credit facility replacement described below. On February 6, 2004, the Company replaced the Facility with a new credit facility provided by a commercial asset-based lender. The new credit facility, which expires on February 6, 2007, provides for borrowing capacity of up to $12 million based on a percentage of eligible accounts receivable and inventories. This new facility bears interest based on the 30-day dealer placed commercial paper rate plus 4.50% (effective rate of 5.51% at February 6, 2004), restricts the Company's ability to pay dividends, and includes certain financial covenants (fixed charge coverage ratio and maximum capital expenditure amount). The Company's debt obligations at December 31, consist of the following:
(in thousands) ------------ 2003 2002 ---- ---- Revolving credit facility $4,947 $4,000 Promissory Notes -- 128 Acquisition agreement obligation 126 -- Acquired leasehold improvement obligation 162 -- ----- ----- $5,235 $4,128 Less current portion 89 128 ----- ----- $5,146 $4,000 ===== =====
Aggregate future long-term debt maturities are as follows: (in thousands) ------------ Years ending December 31, Amount ------------------------ ------ 2004 $ 89 2005 89 2006 5,025 2007 32 12. RELATED PARTY TRANSACTIONS -------------------------- The Company leases a facility from a partnership controlled by two shareholders of the Company. This lease, which contains a renewal option on May 14, 2009 and expires on May 14, 2019, requires minimum annual rent of $771,000 at a fixed rate for the first 10 years, and the Company is responsible for taxes, insurance and other operating expenses. In connection with the DMS Store Fixtures acquisition, employment agreements were made with two shareholders of the Company, which provided for guaranteed 34 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS minimum annual payments of approximately $0.5 million. These agreements were mutually terminated in January 2001 eliminating the guaranteed minimum payments after February 2, 2001, which reduced administrative and general expenses by approximately $0.5 million in the first quarter of 2001. 13. COMMITMENTS AND CONTINGENCIES ----------------------------- The Company operates in leased office, warehouse and production facilities. Lease terms range from monthly commitments up to 17 years with options to renew at varying times. Certain lease agreements require the Company to pay utilities, taxes, insurance and maintenance. As of December 31, 2003, future minimum lease commitments under non-cancelable operating leases are as follows: (in thousands) ------------ Years ending December 31, Amount ------------------------- ------ 2004 $2,267 2005 1,955 2006 1,679 2007 1,276 2008 771 2009 and thereafter 289 ----- Total minimum lease commitments $8,237 ===== The Company jointly leases a 31,000 square foot facility with International Expo Services ("IES"), in which the Company holds a minority interest. The annual lease commitment for this facility is $214,000 through September 22, 2007, which is not included with the above future lease commitments. Payments in connection with this lease are made by IES. Rental expense, exclusive of supplemental costs, was approximately $2,372,000 $2,138,000, and $2,135,000 for the years ended December 31, 2003, 2002 and 2001, respectively. The Company is engaged in legal proceedings in the normal course of business. The Company believes that any unfavorable outcome from these suits not covered by insurance would not have a material adverse effect on the financial statements of the Company. 14. INVESTMENT TRANSACTION ---------------------- On November 20, 2001, the Company issued 5,300,000 shares of its common stock and warrants expiring on November 19, 2011 to purchase 5,300,000 shares of its common stock for an aggregate of $2,650,000. This transaction was approved by the Company's shareholders at the Annual Meeting of Shareholders held on November 7, 2001. Costs incurred in connection with this transaction were $378,000. 15. WARRANTS AND STOCK OPTIONS -------------------------- Warrants On November 20, 2001, the Company issued warrants expiring on November 19, 2011 to purchase an aggregate of 5,300,000 shares of common stock at an exercise price of $.50 per share in connection with an investment transaction approved by the Company's shareholders at the Annual Meeting of Shareholders held on November 7, 2001. The fair value of these warrants using the Black-Scholes pricing model was $742,000, which was recorded as a component of stockholders equity. 35 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS On October 12, 1999, the Company issued warrants to purchase 100,000 shares of common stock at an exercise price of $2.50 per share to the Company's financial adviser in connection with a debt restructuring project. These warrants are exercisable on or before October 12, 2004. 36 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Stock Options In 1990, the Company adopted the 1990 Incentive Plan which provides for the granting of Incentive Stock Options ("ISO") and a 1990 Nonstatutory Option Plan which provides for the grantings of Nonstatutory options ("NSO") (collectively, "the 1990 Plans"). Under the 1990 Plans, 1,450,000 shares of Common Stock are authorized for issuance under options that may be granted to employees. Options are exercisable at a price not less than the market value of the shares at the date of grant in the case of ISO's, and 85% of the market value of the shares in the case of NSO's. In 1992, the Company adopted the 1992 Directors' and Consultants' Stock Option Plan (the "1992 Plan") which provides for the granting of options to purchase up to 50,000 common shares to directors and consultants who are neither principal stockholders, nor receive salary compensation. Prices are determined as in the 1990 Plan. The 1992 Plan was amended in June 1998 to eliminate non-discretionary annual stock awards, to provide stock awards or options as determined by the Board and to increase the authorized shares to a total of 250,000. In 2000, the Company adopted the 2000 Equity Incentive Plan (the "2000 Plan") which provides for the granting of up to 735,000 Common Stock options, stock appreciation rights, stock units and restricted shares to employees, outside directors and consultants. Prices are determined as in the 1990 Plan. Terms of other securities are determined by a committee of the Board of Directors. In 2001, the Company adopted the 2001 Equity Incentive Plan (the "2001 Plan") which provides for the granting of up to 2,000,000 Common Stock options and restricted shares to employees, outside directors and consultants. Options are exercisable at a price not less than the market value of the shares at the date of grant in the case of ISO's. Terms of other securities are determined by a committee of the Board of Directors. Options have been granted to employees outside of the foregoing plans as an incentive to accept employment with the Company, and the amount of options so granted does not exceed of 5% of the Company's outstanding shares of Common stock. 37 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS The following is a summary of stock option transactions and exercise prices:
Shares Price Per Share Weighted Average ------ ---------------- ---------------- Outstanding at December 31, 2000 1,740,022 $1.60 to $6.25 $3.03 Granted 75,000 $2.00 $2.00 Expired or cancelled (1,148,500) $1.60 to 6.00 $2.94 Exercised -- -- -- Outstanding at December 31, 2001 666,522 $2.00 to $6.25 $3.13 Granted 1,676,242 $.50 $.50 Expired or cancelled (250,919) $2.13 to $4.00 3.05 Exercised -- -- -- ---------- Outstanding at December 31, 2002 2,091,845 $ .50 to $6.25 $1.03 Granted -- -- -- Expired or cancelled (316,767) $ .50 to $6.25 $3.30 Exercised -- -- -- Outstanding at December 31, 2003 1,775,078 $ .50 to $2.13 $ .63
The following table summarizes information concerning outstanding and exercisable stock options as of December 31, 2003:
Options Outstanding Options Exercisable ------------------- ------------------- Weighted Average ---------------- Number of Number of Weighted Range of Exercise Options Remaining Options Average Prices And Awards Life (Years) Exercise Price and Awards Exercise Price ------ ---------- ------------ -------------- ---------- -------------- 1990 Plans $2.00 60,000 2.03 $2.00 60,000 $2.00 1992 Plan $2.00 73,336 1.47 $2.00 73,336 $2.00 2000 Plan -- -- -- -- -- -- 2001 Plan $ .50 1,626,242 6.76 $.50 1,601,242 $.50 Other $2.13 15,500 .30 $2.13 15,500 $2.13 ---- ------ ---- ---- ------ ---- Grand Total $.50 to $2.13 1,775,078 6.33 $.63 1,750,078 $.63 ============ ========= ==== ==== ========= ====
38 The following is a summary of stock options exercisable at December 31, 2003, 2002 and 2001, and their respective weighted-average share prices:
Weighted Average Number of Shares Exercise Price ---------------- ---------------- Options exercisable December 31, 2003 1,750,078 $0.63 Options exercisable December 31, 2002 1,913,520 $1.07 Options exercisable December 31, 2001 558,197 $2.72
16. EMPLOYEE BENEFIT PLANS ---------------------- The Company maintains a defined contribution savings plan under Section 401(k) of the Internal Revenue Code which provides retirement benefits to certain employees of the Company and its wholly-owned subsidiaries who meet certain age and length of service requirements. The Company's contribution to the Plan is determined by management. There were no charges to income with respect to this Plan in 2003, 2002 or 2001. 17. INCOME TAXES ------------ The components of the provision for (benefit from) income taxes were as follows:
(in thousands) 2003 2002 2001 ---- ---- ---- Current: Federal $(434) $ -- $100 State -- -- -- Deferred: Federal -- (604) 4,552 State -- 234 42 ----- ----- ---- $(434) $ 4,786 $(462) ===== ===== ====
A reconciliation of federal statutory income taxes to the Company's effective income tax expense is as follows:
2003 2002 2001 ---- ---- ---- Federal statutory rate $(896) $ (894) $(543) State income tax, net of federal income tax effect 234 234 48 Non-deductible expenses 120 28 192 Non-taxable income -- -- (192) Valuation allowance 510 5,384 -- Fully reserved net operating loss utilization (434) -- -- Other, net 32 34 33 ---- ----- --- $(434) $4,786 $(462) === ===== ===
39 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS The net deferred tax asset at December 31, 2003 and 2002 consist of the following:
(in thousands) ------------ 2003 2002 ---- ---- Accounts receivables $ 153 $ 120 Inventories 140 395 Property and equipment 11 15 Accrued expenses and compensation 43 40 Goodwill and intangibles 2,675 2,971 Operating loss and credit carryforward 2,234 2,650 Other, net 924 829 Valuation allowance (6,180) (7,020) ----- ----- ===== =====
In the fourth quarter 2002, the Company established a valuation allowance of $7 million to fully reserve for its deferred tax assets as of December 31, 2002. This allowance was based on an evaluation of several factors, including prior years' actual operating results and projected operating results. The net change in the valuation allowance for deferred tax assets was a decrease of $840,000 during 2003. The decrease relates to the utilization of prior year net operating losses, which were carried back during 2003. The Company has available approximately $5.6 million of net operating loss carry forwards, which begin to expire in 2016. 40 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 18. QUARTERLY FINANCIAL INFORMATION (UNAUDITED) Summarized unaudited quarterly financial data for the years ended December 31, 2003 and 2002 are:
(in thousands except per share amounts) ------------------------------------- March 31 June 30 September 30 December 31 -------- ------- ------------ ----------- 2003 ---- Net sales $17,456 $19,864 $12,626 $15,641 Gross profit 4,402 4,607 2,226 3,149 Net income (loss)* 416 295 (1,916) (996) Basic net income (loss) per common share .03 .02 (.15) (.08) Diluted net income (loss) per common share .03 .02 (.15) (.08) 2002 ---- Net sales $16,795 $21,419 $15,204 $17,764 Gross profit 4,164 4,329 2,628 3,034 Net income (loss)** (13,668) 45 (465) (5,711) Basic net income (loss) per common share (1.05) -- (.04) (.44) Diluted net income (loss) per common share (1.00) -- (.04) (.44)
* The first quarter of 2003 includes a $0.3 million expense from a terminated merger agreement. The third quarter of 2003 includes a $1.1 million restructuring provision for facility relocation. The fourth quarter of 2003 includes an impairment write down of $0.3 million in the Company's investment in an affiliate. **The first quarter of 2002 includes $1.2 million for a write-down in the Company's investment in an affiliate, and a $12.4 million impairment loss (net of a $3.5 million income tax benefit) for a change in accounting principle (adoption of SFAS No. 142, "Goodwill and Other Intangible Assets"). The fourth quarter of 2002 includes an income tax valuation allowance of $5.4 million. 41 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS MARLTON TECHNOLOGIES, INC. FINANCIAL STATEMENT SCHEDULE SCHEDULE (2) VALUATION AND QUALIFYING ACCOUNTS AND RESERVES ----------------------------------------------------------- (in thousands)
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E -------- -------- -------- -------- -------- Additions Description Balance at Charged to Charged to other Deductions - Balance at end beginning of costs and accounts Write-Offs of period period expenses
For the Year Ended December 31, 2003 ------------------------------------ Allowances deducted from Assets to which they apply:
Trade accounts receivable $ 309 $ 327 -- $ 221 $ 415 Inventory obsolescence 597 157 -- 668 86 Deferred tax assets 7,020 -- -- 840 6,180 For the Year Ended December 31, 2002 ------------------------------------ Allowances deducted from Assets to which they apply: Trade accounts receivable $ 502 $ 317 -- $ 510 $ 309 Inventory obsolescence 1,121 361 -- 885 597 Deferred tax assets 313 *6,707 -- -- 7,020 * In the fourth quarter 2002, the Company established a valuation allowance of $7 million to fully reserve for its deferred tax assets as of December 31, 2002. This allowance was based on an evaluation of several factors, including prior years' actual operating results and projected operating results. For the Year Ended December 31, 2001 ------------------------------------ Allowances deducted from Assets to which they apply: Trade accounts receivable $ 836 $ 442 --- $ 776 $ 502 Inventory obsolescence 1,214 853 --- 946 1,121 Deferred tax assets --- 313 --- --- 313
42 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Schedule 2.1 ------------ Revolving Credit Commitments ---------------------------- GE Capital Corporation $12,000,000 Total $12,000,000 43 EX-10.2 3 exhibit10_lease-agree.txt EX 10 (B) 2ND AMEND./PART. TERM. OF LEASE AGMT. EXHIBIT 10 (bb) SECOND AMENDMENT TO, AND PARTIAL TERMINATION OF, LEASE AGREEMENT THIS SECOND AMENDMENT TO, AND PARTIAL TERMINATION OF, LEASE AGREEMENT (the "Second Amendment"), is entered into as of January 1, 2004, by and between GILLESPIE FIELD PARTNERS, LLC, a California limited liability company ("Landlord") and SPARKS EXHIBITS, LTD., a California corporation ("Tenant"), with reference to the following facts: A. Landlord and Tenant are all of the parties to that certain Lease Agreement dated as of June 29, 1998 (the "Lease"), wherein Landlord leased to Tenant certain real property located at 2025 Gillespie Way, El Cajon, California, having located thereon a single industrial building (the "Building") containing approximately 150,159 square feet of space (the "Original Premises"). B. Subsequent to execution of the Lease, Tenant's business requirements have changed and Tenant has requested that Landlord assist Tenant in locating tenants to lease portions of the Original Premises. In accordance with Tenant's request, Landlord previously identified G.T.M. Wholesale Liquidators Inc. ("GTM") as a prospective tenant to lease a portion of the Original Premises comprising approximately 40,694 square feet (the "GTM Premises") and Landlord and Tenant have previously entered into that certain First Amendment to Lease Agreement and Agreement dated as of October 31, 2003 (the "First Amendment"), whereby Landlord and Tenant have agreed to mutually cooperate and undertake to pay for and perform certain obligations with respect to the GTM Premises. C. Upon the fulfillment and satisfaction of certain terms, provisions and conditions set forth in the First Amendment, Landlord and Tenant agreed to mutually terminate the Lease with respect only to the portion of the Original Premises which is comprised of the GTM Premises. Subject to payment by Tenant of remaining amounts required by the First Amendment, such terms, provisions and conditions set forth in the First Amendment have been fulfilled and satisfied and, accordingly, Landlord and Tenant desire to memorialize the partial termination of the Lease with respect to the GTM Premises and to otherwise amend certain terms and provisions of the Lease affected by such partial termination. NOW, THEREFORE, in consideration of the mutual covenants, agreements and undertakings contained in this Second Amendment and the exchange of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Definitions. Unless defined in this Second Amendment, or except as otherwise expressly provided in this Second Amendment, capitalized terms utilized in this Second Amendment shall have the meanings ascribed to such terms in the Lease. 2. Mutual Partial Termination of the Lease; Effective Date. Pursuant to, and in accordance with, Section 4 of the First Amendment ("Section 4"), Landlord and Tenant hereby agree and acknowledge that (i) subject to payment by Tenant of remaining amounts required by the First Amendment, all terms, provisions and conditions of Section 4 which were required to be fulfilled and satisfied in order for the Lease to be partially terminated have been fulfilled and satisfied, (ii) effective as of January 1, 2004 (the "Effective Date"), the Lease is partially terminated with respect only to the portion of the Original Premises which is comprised of the GTM Premises (the "Partial Termination"), (iii) this Second Amendment is intended by Landlord and Tenant to constitute the "mutually acceptable written instrument" referred to in Section 4 of the First Amendment, which Section 4 contemplates is to be entered into by Landlord and Tenant partially terminating and amending the Lease and (iii) the Lease is amended and modified in accordance with the terms and provisions of this Second Amendment. Notwithstanding Landlord's agreement with Tenant to partially terminate the Lease as of the Effective Date, as aforesaid, Tenant shall remain obligated and liable for Tenant's share of costs and expenses set forth in the First Amendment as fully and finally determined. Landlord has previously provided Tenant with good faith estimates of the costs and expenses described and set forth in Section 3 of the First Amendment and Section 6 of the First Amendment. As soon as practicable following the execution of this Second Amendment, Landlord shall use its good faith best efforts to provide Tenant with a breakdown of the final costs and expenses required to be paid by Tenant pursuant to the First Amendment, accompanied by reasonable supporting documentation and the parties will discharge their respective responsibilities with respect thereto in accordance with all terms and provisions of the First Amendment. 3. Specific Amendments to the Lease. Effective as of the Effective Date, the Lease is hereby amended only in the following specific respects: 3.1 Definition of Premises. The definition of the "Premises", for all purposes of the Lease, shall refer to, and be deemed to refer to, the Original Premises reduced by the portion of the Original Premises which comprises the GTM Premises, consisting of approximately 109,465 square feet, depicted in the amended Exhibit A attached to this Second Amendment, which Exhibit A amends, supersedes and replaces in its entirety, original Exhibit A to the Lease. 3.2 Parking. The requirement, in Section 1.1 of the Lease, that the Premises contain not less than 200 parking spaces is hereby amended to provide that the Premises shall contain not less than 145 parking spaces. 3.3 Base Monthly Rental. Base Monthly Rental, as provided in Section 3.1 of the Lease, shall be the sum of $52,542.97 per month, and, in accordance with Section 3.3 of the Lease, shall remain fixed throughout the balance of the initial term of the Lease as set forth in Section 2.1 of the Lease. 3.4 Share of Common Area Maintenance Expenses and Other Charges. (a) Section 3.4 of the Lease shall be amended in its entirety to provide: "Tenant shall pay as additional rent utilities, taxes, insurance, repairs, maintenance or other charges, as described and in the manner provided in Article 9 and common area expenses, as described and in the manner provided in Article 11". (b) The first sentence of Section 8.1 of the Lease shall be amended in its entirety to provide: "Landlord shall maintain, at Tenant's prorata expense, a policy or policies of insurance protecting Landlord against the following:" (c) The first sentence of Section 10.2 of the Lease shall be amended in its entirety, to provide: "Tenant shall also pay in the manner set forth in Section 11.3, its prorata share (as provided in Section 11.2 hereof) of any and all real estate taxes, as defined in Section 10.3, assessed or imposed, or which become a lien upon or become chargeable against or payable in connection with the Property, including without limitation, charges which are attributable to common areas; provided, however, that with respect to (i) alterations, improvements or additions to the Premises placed in or upon the Premises or the Property by Tenant or at Tenant's request, (ii) installation of trade fixtures, machinery or trade equipment as permitted elsewhere in this Lease by Tenant or at Tenant's request, and/or (iii) any other matter which, as a result of Tenant's actions, or Tenant's request, in each of the foregoing cases described in subclauses (i) through (iii) of this Section 10.2 , results in an increase in real estate taxes assessed or imposed, or which become a lien upon or become chargeable against or payable in connection with the Property, Tenant shall bear such increase, lien or charge fully rather than Tenant's prorata share (as provided in Section 11.2 hereof). Similarly, with respect to any matter which, as a result of the actions of a tenant(s) other than Tenant, or the request by a tenant(s) other than Tenant, results in an increase in real estate taxes assessed or imposed, or which become a lien upon or become chargeable against or payable in connection with the Property, Tenant shall have no responsibility or obligation therefor (prorata or otherwise)." (d) The second sentence of Section 11.2 of the Lease shall be amended in its entirety, to provide: "Tenant shall pay to Landlord in the manner set forth in Section 11.3 of the Lease, Tenant's prorata share of expenses in connection with the maintenance of common areas, which shall be equal to that proportion which the gross floor area of the Premises bears to the gross floor area in the Building (i.e., 72.90%), plus any additional costs arising from special requirements created by Tenant's use of the Premises". 3.5 Deletion of Provisions Without Continuing Applicability. Sections 37 and 38 of the Lease are deleted from the Lease, shall have no further effect or applicability and Landlord shall not be bound by any of such provisions or otherwise restricted thereby. 4. Amendment; Confirmation; Interpretation. To the extent, but only to the extent, necessary to give effect to the First Amendment and this Second Amendment, the Lease is deemed amended and modified. Except to the limited extent amended and modified hereby, the Lease is ratified and confirmed in all respects and remains extant and in full force and effect. 5. General Provisions. 5.1 Further Assurances. Each party hereto agrees to perform any further acts and execute and deliver any further documents that may be reasonably necessary to effectuate the provisions of this Second Amendment. 5.2 Counterparts; Fax Signatures. This Second Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile signatures shall have the same force and effect as original signatures. 5.3 Severability. If any provisions, or portions thereof, of this Second Amendment or the application thereof are held to be unenforceable or invalid by any court of competent jurisdiction, the remainder of this Second Amendment shall not be affected thereby and to this end only the provisions of this Second Amendment are declared severable. 5.4 Successors and Assigns. Subject to the provisions of Section 5.10 of this Second Amendment, all terms of this Second Amendment shall be binding on and shall inure to the benefit of and be enforceable by the parties hereto and their respective heirs, legal representatives, successors and assigns. 5.5 Governing Law; Venue. This Second Amendment shall be governed by, construed and enforced in accordance with the laws of the State of California and is to be performed in San Diego County, California and any action or other proceeding brought to enforce or interpret this Second Amendment shall be brought in San Diego County, California. 5.6 Waiver. No waiver of any of the provisions of this Second Amendment shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No failure to enforce any right or provision hereunder shall preclude or affect the later enforcement of such right or provision. No waiver shall be binding unless executed by the party making the waiver. 5.7 Time. Time is of the essence with respect to the performance by each party of its rights and obligations hereunder. 5.8 Attorneys' Fees. In the event any attorney is employed by either party to this Second Amendment with regard to any legal action, arbitration or other proceeding brought by either party for the enforcement or interpretation of this Second Amendment, or because of any alleged dispute, breach, default, or misrepresentation involving any provisions of this Second Amendment, the party prevailing in any such proceeding shall be entitled to recover reasonable attorneys' fees and other costs and expenses incurred, in addition to any other relief to which it may be entitled. 5.9 No Joint Venture. The parties hereto are independent of one another and no joint venture, partnership or other collaborative venture is intended or implied by the provisions of this Second Amendment. 5.10 Assignment. Neither party may assign this Second Amendment nor any of its respective rights, liabilities and obligations under this Second Amendment without the prior written consent of the other party, which may be given or withheld in such party's sole and unreviewable discretion. 5.11 Entire Agreement. This Second Amendment, together with the First Amendment and the Lease, constitutes the entire agreement between the parties pertaining to the subject matter contained in this Second Amendment and supersedes all prior and contemporaneous agreements, representations and understandings of the parties with respect thereto. There are no representations, warranties, agreements or understandings, express or implied, written or oral between the parties hereto relating to the subject matter of this Second Amendment which are not fully expressed herein, in the First Amendment and/or the Lease. 5.12 Amendment. No supplement, amendment, modification, discharge or change of this Second Amendment shall be binding unless executed in writing by all of the parties. 5.13 Authority. If a party to this Second Amendment is a corporation or other entity which is not a natural person, each individual executing this Second Amendment on behalf of said corporation or other entity represents and warrants that he is duly authorized to execute and deliver this Second Amendment on behalf of said corporation or other entity in accordance with a duly adopted resolution of the board of directors of such corporation or the governing authority of such other entity or in accordance with the bylaws of such corporation or governing instrument(s) of such other entity, and that this Second Amendment is binding upon such corporation or other entity in accordance with its terms. IN WITNESS WHEREOF, the parties have executed this Second Amendment as of the date first set forth above. Landlord: Tenant: GILLESPIE FIELD PARTNERS, LLC SPARKS EXHIBITS, LTD., a California limited liability company a California corporation By /s/ Richard C. Dentt By: /s/ Robert B. Ginsburg ---------------- ------------------ Richard C. Dentt Robert B. Ginsburg Manager Chief Financial Officer Guarantor's Acknowledgement: The undersigned, as guarantor of the Lease (defined above in this Second Amendment), (i) agrees to and acknowledges the terms and provisions of the Second Amendment set forth above and (ii) agrees that nothing contained in this Second Amendment shall affect the validity or enforceability of the Continuing Guaranty of Lease dated as of June 29, 1998 (the "Guaranty"), given by the undersigned guarantor to Landlord in connection with Tenant's execution and performance of the Lease. SPARKS EXHIBITS CORP., a Pennsylvania corporation By: ____________________ [Signature] ____________________ [Print Name and Title] EXHIBIT A DEPICTION OF THE PREMISES EX-10.19 4 lease-agt.txt EX-10 (S) WOODLANDS AT RIVERSIDE - LEASE AGMT. EXHIBIT 10(s) WOODLANDS AT RIVERSIDE LEASE AGREEMENT THIS LEASE AGREEMENT is made and entered into this the 12th day of August, 1993, between Woodlands Joint Venture No. V534-3, a Georgia Partnership, hereafter referred to as "Lessor' and Sparks Exhibits Inc. a Georgia Corporation, hereafter referred to as "Lessee": WITNESSETH: 1. LEASED PREMISES: In consideration of the rents, terms, provisions and covenants to this Lease, Lessor hereby leases, lets and demises to Lessee the following described premises (sometimes referred to as "Leased Premises") see Exhibit "A" attached hereto and by this reference made a part hereof and containing approximately 80,876 square feet located in that certain building known as 8125 Troon Circle, Austell, Georgia 30001, (the "building") located on that certain tract of land more particularly identified on exhibit "B" attached hereto and made a part hereof (the "Property"), said Property being a part of that certain development known as "Woodlands at Riverside" (the "Park"). 2. TERM: (a) Subject to and upon the conditions set forth below, the term of this Lease shall commence on October 1, 1993, (sometimes referred to as "Commencement Date") and shall terminate one hundred twenty, 120 months thereafter. (b) Within thirty (30) days after the Commencement Date, Lessor and Lessee will execute and deliver a Commencement Date Agreement in the form attached as Exhibit "F" and by this reference made a part hereof, with the blanks appearing thereon completed in accordance with the provisions of this Lease in order to memorialize the Commencement date and expiration date of this Lease. 3. RENT: (a) Lessee agrees to pay Lessor the sum of $2,561,746.92 as the total base rental for the term of this Lease. Lessee agrees to pay such total base rental in monthly installments of (See Exhibit "D", Special Stipulations, paragraph number one (1), which amounts shall be due and payable to Lessor in advance, without deduction or setoff, prior notice or demand at the address shown below on the first day of each and every month (1) following the Commencement Date for the entire term of the Lease. One monthly installment of base rental installments being paid in accordance with the foregoing; provided, that if the Commencement Date should be a date other than the first day of a calendar month, the monthly installment of base rental for such month shall be prorated to the end of that calendar month, and thereafter, all succeeding monthly installments of base rental shall be due and payable on of before the first day of each succeeding calendar month during the demised term. Lessee shall pay, as additional rental, all other sums due under this Lease as provided for hereunder. (b) Intentionally omitted. (c) If any increase of the fire insurance premiums paid by Lessor for the Building in which Lessee occupies space is caused by Lessee's use and occupancy of the Leased Premises, of if Lessee vacates the Leased Premises during the lease term and causes an increase in such premiums, then Lessee shall pay in additional rental the entire amount of such increase to Lessor. Lessor warrants that, as of the date of this Lease, Lessee's use of the Leased Premises for the purposes of office, warehouse, showroom and the production and storage of trade show products shall not cause any increase of the fire insurance premiums paid by Lessor for the Building in which Lessee occupies space. Lessee recognizes and agrees that said warranty is strictly limited to premium increases which would take place as of the date of this Lease when taking into account Lessor's Insurer's present premium calculation policies and is in no way intended to be a warranty as to possible increases which may occur in the future, for whatever reason, including, but not limited to, changes in the policies or underwriting standards of Lessor's present insurer or any future insurer. (1) as set forth in Exhibit "D" Special Stipulations paragraph No. 1. (d) Other remedies for nonpayment of rent notwithstanding. If the monthly rental payment is not received by Lessor on or before the tenth day of the month for which rent is due, or if any other payment due Lessor by Lessee is not received by Lessor on or before the tenth day of the month next following the month in which Lessee was invoiced, a service charge of five percent (5%) of such past due amount shall become due and payable in addition to such amounts owed under this Lease. (1) (e) In the event the operating expenses (as defined below) of Lessor for the Building, Property, and/or Park of which the Leased Premises are a part shall, in any calendar year during the term of this Lease. (1a) exceed the sum of $.15 per square foot, Lessee agrees to pay as additional rental Lessee's pro rata share of such excess operating expenses. Lessor shall, following the close of any calendar year for which additional rental is due under this paragraph, invoice Lessee for the additional rental. The invoices shall include in reasonable detail all computations of the additional rental, and Lessee agrees to pay the additional rental within ten (2) days following receipt of the invoice. If this Lease shall terminate on a day other than the last day of a year, the amount of any additional rental payable by Lessee applicable to the year in which such termination shall occur shall be prorated on the ratio that the number of days from the commencement of such year to and including such termination date bears to 365. If at any time during the term of this Lease, Lessor has reason to believe the per square foot operating expenses for the calendar year will exceed the sum set forth above, Lessor may by invoice direct Lessee to prepay monthly one-twelfth of an amount equal to the additional rental due for the previous year. If the invoice delivered following the close of the calendar year in accordance with this subparagraph 3(e) shows an amount owing by Lessee that is less than the sum of the monthly payments made by Lessee in the previous calendar year, the invoice shall be accompanied by a credit (3) for the excess from the Lessor to the Lessee. If such invoice shows an amount owing by Lessee which is more than the sum of the monthly payments made by Lessee in the previous calendar year. Lessee shall pay such deficiency to Lessor within ten (3) days after receipt of the invoice. During the year in which this lease terminates, Lessor shall have the option to invoice Lessee for the Lessee's pro rate share of the excess operating expenses based upon the previous year's excess operating expenses: Lessor shall invoice Lessee under this option within thirty days prior to the termination of the Lease or at any time thereafter. In the event Lessee reasonably believes the additional rental amounts charged to it based on its pro rate share of operating expenses are in error, Lessee shall have the right to request additional documentation substantiating such operating expenses. The obligation to pay such additional rental amounts shall survive the termination of this Lease. For all purposes of this Lease, the term "Pro Rata Share" shall refer to the ratio of the total floor area of the Leased Premises to the total floor of the Building or Park whichever is applicable in such instance. (4) (f) The term "operating expenses" as used above means all actual costs and expenses paid or incurred by Lessor or on its behalf in connection with the maintenance, management, operation, repair (including the items in subparagraph 7 (a) below (4a)), cleaning, security and landscaping of the common areas of the Property and Building including, without limitation, the Property's share of common area charges and assessments with respect to the Park. The term "operating expenses" also includes all real property taxes and installments of special assessments, including special assessments due to dead restrictions and/or owners' associations, which accrue against the Building and/or Property of which the Leased Premises are a part during the term of this Lease as well as all insurance premiums Lessor is required to pay or deems (5) necessary to pay, with respect to the Building and/or Property. The term "operating expenses" does not include any capital improvement to the Building and/or Property of which the Leased Premises are a part, not shall it include repairs, restoration or other work occasioned by fire, windstorm or other casualty, income and franchise taxes of Lessor, leasing commissions, expenses for the renovating of space for new tenants, interest or principal payments on any mortgage or other indebtedness of Lessor. (g) Lessor and Lessee agree that no portion of the base rental, rent adjustments for operating expense, or additional rental paid by Lessee during the portion of the term of this Lease occurring after the expiration of any period during which such amounts were abated shall be allocated, for income tax purposes, by Lessor or Lessee to such abatement period, nor are such amounts intended by the parties to be allocable, for income tax purposes, to any abatement period. 4. SIGNS: Notwithstanding anything to the contrary set forth in the Lease, signage rights will be provided on the front of the building (6). The actual sign and its respective installation cost shall be at the expense of the Lessee and shall conform to Riverside Architectural covenants (7). Lessee shall be responsible for any damage to the Building occasioned by the installation of any such signs. Lessee shall place no sign upon the roof of the Leased Premises or Building, nor any part of the roof, including the flashing or gutters of the Leased Premises or Building. Lessee shall repair any damage to the Building caused thereby, including, but not limited to discoloration. Excepting "force majeure", Lessee shall be required to install identification signage within ninety (90) days of the commencement, subject to the aforementioned conditions and limitations. The provisions hereof shall survive the termination of this Lease. 5. USAGE: (A) Lessee warrants and represents to Lessor that the Leased Premises shall be used and occupied only for the purpose of office, warehouse, showroom and the production and storage of products and no other purposes. Outside storage, including, without limitation, trucks and other vehicles, is prohibited without Lessor's prior written consent. Without Lessor's prior written consent, Lessee shall not receive, store, or otherwise handle any substance, product, material or merchandise which is explosive or highly flammable, toxic or hazardous. Lessee shall occupy the Leased Premises, conduct its business and control its agents, employees, invitees and visitors in such a manner as is lawful, reputable and will not create any nuisance or otherwise interfere with, annoy or disturb any other tenant in its normal business operations or Lessor in its management of the Building. Lessee shall not commit, or suffer to be committed, any waste on the Leased Premises, Lessee shall not permit the Leased Premises to be used in any way which would render void the fire insurance on the Leased Premises or contents of the or contents of the Building. (8) (1) Notwithstanding the foregoing, Lessor agrees to notify Lessee in the even a monthly rental payment or any other payment is past due in accordance with this paragraph. The Lessee has two (2) business days to cure such past due payment before a service charge of 5% shall become due. (1a) prorated for the year 1993 from the Commencement Date. (2) twenty (20) (3) refund (4) Lessor represents that Lessee's estimated expense of the pro-rata share of such excess operating expenses during the first year of this lease will be approximately $.34 per square foot; provided, however, the aforesaid representation is not a guarantee but merely Lessor's good faith estimate. Lessee agrees to be responsible for its own utility cost associated with the Leased Premises. (4a) but excluding those expenses set forth in footnote 3 to paragraph 7 (5) reasonably (6) within column lines F and P as shown on Exhibit "A". The exact location of the actual sign shall be agree to be Lessor and Lessee (7) as previously delivered to Lessee (8) Lessor represents that Lessee's permitted use of the Leased Premises is permitted under all applicable zoning laws. (b) "Hazardous Substances", as used in this Lease shall mean pollutants, contaminants, toxic or hazardous wastes, or any other substances, the removal of which is required or the use of which is restricted, prohibited or penalized by any "Environmental Law", which term shall mean any federal, state or local law or ordinance relating to pollution or protection of the environment. Lessee hereby agrees that: (1) no activity will be conducted on the Leased Premises which will produce any Hazardous Substance(1); (2) the Leased Premises will not be used in any manner for the storage of any Hazardous Substances (1); (3) no portion of the Leased Premises will be used as a landfill or a dump; (4) Lessee will not install any underground tanks of any type; (5) Lessee will not allow or cause any surface or subsurface conditions to exist or come into existence that constitute, or with the passage of time may constitute, a public or private nuisance; (6) Lessee will not permit any Hazardous Substances to be brought into the Leased Premises (1). (2) Lessee agrees to indemnify and hold Lessor harmless from all claims, demands, actions, liabilities, costs, expenses, damages and obligations of any nature arising from or as a result of the use of the Leases Premises (1) by Lessee, its agents, employees, contractors, invitees or licenses. The foregoing indemnification shall survive the termination or expiration of this Lease. 6. Intentionally Omitted 7. REPAIRS AND MAINTENANCE: (a) Unless otherwise expressly provided, Lessor shall not be required to make any improvements, replacements or repairs of any kind or character to the Leased Premises during the term of this Lease, except repairs to the roof, foundation, exterior walls (not including any windows or doors) and additional maintenance as may be reasonably necessary beginning not more than fifteen (15) days after written notice by Lessee. Lessor's cost of maintaining these items are subject to the additional rental provisions in paragraph 3. (3) Lessor shall not be liable to Lessee, except as expressly provided in this Lease, for any damage or inconvenience, and Lessee shall not be entitled to any abatement or reduction of rent by reason of any repairs, alterations or additions made by Lessor under this Lease. (4) (b) Upon occupancy of the Leased Premises for business purposes, Lessee shall be deemed to have accepted the Leased Premises in their then present condition and as suited for the uses intended by Lessee (5). Lessee shall, throughout the Term of this Lease and all renewals thereof, at its sole cost and expense, maintain in good order and repair the Lease Premises, including, without limitation, the heating and air conditioning equipment (including, but not limited to, replacement of parts, compressors, air handling units and heating units) and other improvements located therein, except those repairs expressly required to be made by Lessor. (6) Lessee agrees to enter into a service contract with a reliable certified heating and air conditioning company to maintain the heating and air conditioning units and keep them in good working order. Lessee shall furnish Lessor a copy of the service contract and, upon request of Lessor. Lessee shall also furnish copies of routine maintenance reports or Invoices. Lessee shall be responsible for pest and termite control. Lessee shall be responsible for maintenance of the sprinkler valves and any alarm systems in the Leased Premises. Lessee agrees to maintain adequate dumpster service and to keep the Lease Premises in a neat, clean and attractive manner. Lessee shall not damage any demising wall or disturb the integrity and support provided by any demising wall and shall, at its sole cost and expense, promptly repair any damage or injury to any demising wall caused by Lessee or its employees, agents or invitees. Lessee further agrees to repair, at its sole cost and expense, glass and exterior doors (including loading) serving the Leased Premises and, in addition, to make, at its sole cost and expense, all repairs made necessary by the negligence of Lessee, its agents, employees, contractors, licensees, invitees or guests (c) Lessee shall not allow any damage to be committed on any portion of the Leased Premises, and at the termination of this Lease, by lapse of time or otherwise, Lessee shall deliver the Leased Premises to Lessor in any good condition as existed at the Commencement Date of this Lease, ordinary wear and tear excepted. The cost or expense of any repairs necessary to restore the condition of the Leased Premises shall be borne by Lessee, and if Lessor undertakes to restore the Leased Premises it shall have a right of reimbursement against Lessee. (d) All requests for repairs or maintenance that are the responsibility of Lessor pursuant to any provision of this Lease must be made in writhing to Lessor at the address set forth below. (1) in violation of any Environmental Law (2) To the best of Lessor's knowledge, there are no Hazardous Substances under or in the Leases Premises. Lessor has received no notice from any governmental agency or other person or entity that the Leased Premises is in violation of any Environmental Law, or rule, law or regulation applicable to the use or disposal of Hazardous Substance. (3) Lessor agrees to make all repairs because of damage caused by persons other then Lessee, it agents, employees, invitees, licensees or visitors and as may be necessary solely because of the negligence of Lessor at its expense, beginning not more than fifteen (15) days after written notice by Lessee. (4) which does not unreasonably interfere with Lessee's use of the Leased Premises, (5) subject to punch list items and other latent defects discovered by Lessee during its occupancy of the Leased Premises (6) The Lessor represents that such equipment will be new upon installation. The Lessor agrees to pass through to Lessee the benefit of all warranties provided with such equipment. 8. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Lessee, at Lessee's expense, shall comply with all laws, ordinances, orders, rules and regulations of state, federal, municipal or other agencies or bodies having jurisdiction relating to the use, condition and occupancy of the Lease Premises (1). Lessee will comply with the rules of the Building adopted by Lessor which are set forth on a schedule attached to this Lease (see Exhibit "C" attached hereto and by this reference made a part hereof). Lessor shall have the right at all times to change the rules and regulations of the Building or to amend them in any reasonable manner as may be deemed advisable for the safety, care and cleanliness, and for the preservation of good order, of the Leased Premises (2). All changes and amendments in the rules and regulations of the Building will be sent by Lessor to Lessee in writing and shall thereafter be carried out and observed by Lessee. 9. ALTERATIONS AND IMPROVEMENTS: (A) Lessee shall not make any alternations, additions or replacements to the Leased Premises, or any repairs required of Lessor under this Lease, without the prior written consent of Lessor, such consent to be given or withheld at the (3) discretion of Lessor, except for the installation of unattached movable fixtures, which may be installed without drilling, cutting, or otherwise defacing the Leased Premises (4). All alterations, additions, and improvements made in and to the Leased Premises and all floor covering that is cemented or adhesively fixed to the floor and all fixtures (other than trade fixtures) which are installed in the Leased Premises shall remain in and be surrendered with the Lease Premises and shall become the property of Lessor at the expiration or sooner termination of this Lease, provided so long as Lessee is not in default hereunder, Lessee shall have the right to remove (5) from the Leased Premises, provided that Lessee shall repair and restore any damage to the Lease Premises caused or occasioned by such removal. (b) All repairs, alterations, additions and improvements done by Lessee within the Leased Premises shall be performed in a good and workmanlike manner, in compliance with all governmental requirements, and at such times and in such manner as will cause a minimum or interference with other construction in progress and with the transaction of business in the Building and/or Park. Whenever Lessee proposes to do any construction work within the Leased Premises, Lessee shall first furnish to Lessor plans and specifications covering such work in such detail as Lessor may reasonably request. Such plans and specifications shall comply with such requirements as Lessor may from time to time (6) prescribe for construction within the Building and/or Park. In no event shall any construction work be commenced within the Premises without Lessor's written approval of such plans and specifications. (7) In the event Lessee does perform any construction work without the prior written consent of Lessor, Lessor shall, in addition to all other remedies it might have hereunder or at law, have the right to require Lessee to immediately remove any unapproved additions or improvements and restore the Leased Premises to the condition existing prior to such unauthorized construction. Without limiting the generality of the foregoing, Lessee shall under no circumstances make any penetration of the roof of the Building without Lessor's consent, which consent may be given or withheld by Lessor in its sole and absolute discretion. In the event Lessor consents to a penetration of the roof, all such work shall be performed by contractors designated or approved by Lessor and shall be supervised by Lessor or its designees and performed under conditions and subject to such conditions and requirements as may be established by Lessor. Lessee shall and hereby agrees to indemnify and hold Lessor harmless from and against any and all loss, cost, damage, expense or liability (including without limitation, court costs and attorneys' fees) ever suffered or incurred by Lessor as a result of any penetration of the roof, (8) including, without limitation, costs of repair, loss of income, claims for damages from other tenants of the Building and damages which result if any warranty on the roof held or maintained by Lessor is voided or impaired by such penetration. The provisions hereof shall survive the termination of this Lease. Additionally, any penetration of the roof without Lessor's consent shall be deemed an immediate event of default hereunder entitling Lessor to the exercise of all rights and remedies provided in this Lease or at law or equity. 10. FLOOR PENETRATION AND FLOOR LOADING: Under no circumstances may Lessee penetrate the floor slab of the Building without Lessor's prior written consent, which may be given or withheld by Lessor in its sole and absolute discretion. Lessee agrees that the point pressure resulting from the Lessee's racking system, inventory, forklifts and equipment pertaining to Lessee's us e of the Leased Premises shall not exceed allowable design floor loading for floor slabs on grade. Lessee shall be responsible to provide steel plates, angles or channels as required to distribute floor loading to the Building design loads. Lessee agrees not to use any vehicle, including, but not limited to those have steel wheels, that will cause damage to the floor slab. Lessee shall hold harmless Lessor from any loss, liability, any expenses, both real and alleged, arising out of such damage or repair caused by Lessee's negligence or failure to comply with this paragraph. 11. LESSOR IMPROVEMENTS: Lessor agrees promptly following the execution hereof, to prepare the Leased Premises (9) for occupancy by Lessee in accordance with the terms and provisions of the Work Agreement attached hereto as EXHIBIT "E" and by this reference mad a part hereof. If Lessor shall be delayed in substantially completing the scope of tenant finish described in Exhibit "E" and/or any additional work hereafter provided for, if any, as a result of: (a) Lessee's failure to promptly and timely furnish any information (10) by Lessor; or (b) Lessee's delay in approving the plans; or (1) however, Lessee shall not be required to make ay structural changes to the Leased Premises which might be required by such agencies or bodies unless such changes are necessitated by the particular use of the Leased Premises by Lessee (2) provided; however, Lessee's use of the Leased Premises is not materially adversely affected by such changes (3) reasonable (4) provided; however, that the Lessee shall not make any alterations or repairs to the Leased Premises, if such alterations or repairs affect the roof, floor, exterior walls or other structural components of the building without Lessor's written consent, such consent to be given or withheld at the sole and absolute discretion of Lessor. (5) any or all such alterations and trade fixtures installed by Lessee (6) reasonably (7) Lessor shall grant approval or disapproval in writing within thirty (30) days of Lessee's written request and Lessor's receipt of such plans and specifications covering such request. In the event Lessor disapproves of Lessee's request, Lessor shall furnish Lessee with a reasonably detailed explanation of such disapproval. (8) by Lessee, its agents, employees, contractors, licensees, invitees or guests (9) by October 1, 1993 in a good and workmanlike manner in compliance with governmental requirements. (10) requested in writing (c) Lessee's request for materials, finishes or installations other than Lessor's building standard items necessitating long lead items to obtain as they are not readily available in the area where the Leased Premises are located with the understanding that Lessor will notify Lessee of any long lead time items which would delay construction so Lessee may request substitutes therefore; or (d) Lessee's (1) changes in any plans, (2) which changes are contrary to Lessee's original requirements and/or to the plans; or (3) (e) Interference with Lessor's work by Lessee or any contractor of Lessee, notwithstanding such delay then the Leased Premises shall be deemed ready for occupancy pursuant to the terms of this Lease Agreement and the Commencement Date shall be October 1, 1993. 12. SERVICES: Lessor agrees to provide at its cost, all gas, water and electrical service to the utility company's point of connection and telephone service connection point in the building for the Leased Premises; Lessee agrees to pay directly to the provider (except as otherwise set forth below) all charges, fees (hook-up, installation and the like) and deposits incurred for any utility services used on the Leased Premises. Lessor shall in no event be liable for any interruption or failure of utility service to the Leased Premises, (4) but, if requested by Lessee, Lessor shall use reasonable efforts to cooperate with Lessee in securing speedy resumption of said interrupted service. Lessee shall promptly notify the proper public authorities and utility companies to provide service for water, sewer, trash removal, gas, electricity and all other utilities required or desired by Lessee, which services are to be in Lessee' name and all costs for such services shall be borne by Lessee as its sole responsibility. In the event the water and sewer connections into the Leased Premises are jointly metered with other premises, Lessee covenants and agrees to pay Lessor on a monthly basis as additional rent, sixty-one and on half percent (61.5%) of all water and sewer charges applicable to the Building, (5) 13. CONDEMNATION: (a) If, during the term (or any extension or renewal) of this Lease, all or a substantial part of the Leased Premises are taken for any public or quasi-public use under any governmental law, ordinance or regulation, or by right of eminent domain or by purchase in lieu thereof, and the taking would prevent or materially interfere with the use of the Leased Premises for the purpose for which they are then being used, this Lease shall terminate and the rent shall be abated during the unexpired portion of this Lease effective on the date physical possession is take by the condemning authority. In no event shall Lessee have claim against Lessor or against the total award for the value of the unexpired lease term or otherwise, and Lessee shall not be entitled to any part of any award that may be make for such taking, nor to any damages therefore except that the rent shall be adjusted as of the date of such termination of this Lease. (6) 14. FIRE AND CASUALTY: (a) If the Leased Premises should be totally destroyed by fire or other casualty, or if the Leased Premises should be damaged so that rebuilding reasonably cannot be completed within one hundred eight (180) working days after the date of written notification by Lessee to Lessor of the destruction, this Lease shall terminate and rent shall be abated for the unexpired portion of the Lease, effective as of the date of the casualty. (7) (b) If the Leased Premises should be partially damaged by fire or other casualty, and rebuilding or repairs can reasonably be completed within one hundred eight (180) working days from the date of written notification by Lessee to Lessor of the destruction, this Lease shall not terminate, but Lessor shall at its sole risk and expense proceed with reasonable diligence to rebuild or repair the Building or other improvements to substantially the same condition in which they existed prior to the damage. If the Lease Premises are to be contributed by actor negligence of Lessee, its agents, employees, invitees or those for whom Lessee is responsible, the rent payable under this Lease during the period for which the Leased Premises are untenantable shall be adjusted to such an extent as may be fair and reasonable under the circumstances. In the event that Lessor fails to complete the necessary repairs or rebuilding within one hundred eighty (180) working days from the date of written notification by Lessee to Lessor of the destruction, Lessee may at its option terminate this Lease by delivering written notice of termination to Lessor, whereupon all rights and obligations under this Lease shall crease to exist. (1) Material (2) causing delays (3) with the understanding that Lessor will notify Lessee of any such material changes which will cause delay so Lessee may elect to forego such changes (4) except to the extent caused by the negligence of Lessor, its agents or employees (5) provided that should any other tenant in the Building in the reasonable opinion of the Lessor, use a substantially disproportionate amount of water in its operation, Lessor shall reallocate the cost to reflect such disproportionate usage. (6) Lessee shall be entitled to seek a condemnation award provided that Lessee's award shall in no way reduce the amount of Lessor's condemnation award (7) Lessor shall notify Lessee within forty-five (45) days of receipt of Lessee's written notice of the occurrence of such causality, of the estimated number of days that will be necessary to re-build or repair the Leased Premises. 15. INSURANCE: (a) Lessee shall maintain comprehensive general liability insurance in the amount of at least One Million Dollars ($1,000,000) per occurrence, naming Lessor as an additional insured. Prior to taking possession of the Lease Premises, and thereafter at least fifteen (15) days prior to expiration of the current policy, Lessee shall deliver a certificate of such insurance to Lessor, providing for at least ten (10) days written notice to Lessor prior to any cancellation or non-renewal of coverage. Lessee hereby waives all right of recovery against Lessor for any loss or liability which is covered by such comprehensive general liability insurance. (b) Property Insurance. Lessee acknowledges and agrees that Lessee is solely responsible for insuring Lessee's personal property, fixtures and equipment located in or about the Lease Premises. Lessee waives all claims or rights of recovery from any all=risk or fire insurance which Lessor may obtain with respect to the Building in which the Leased Premises are located. (c) If Lessee fails to comply with the foregoing requirements relating to Insurance, Lessor shall have the right to obtain such Insurance and Lessee shall pay an additional rental to Lessor on demand the premium cost thereof plus interest from the date of payment until repaid by Lessee. 16 WAIVER OF SUBGOGATION: Anything in this Lease to the contrary notwithstanding, Lessor or Lessee hereby waive and release each other of and from any and all rights of recovery, claim, action or cause of action, against each other, their agents, officers and employees, for any loss or damage that my occur to the Lease Premises, improvements to the Building of which the Leased Premises are a part, or personal property (Building contents) within the Building, by reason of fire or the elements regardless of cause or origin, including negligence of Lessor or Lessee and their agents, officers and employees. Because this paragraph will preclude the assignment of any claim mentioned in it by way of subrogation or otherwise to an insurance company or any other person, each party to this Lease agrees immediately to give to each insurance company which has issued to it policies of insurance covering all risk of direct physical loss, written notice of the terms of the mutual waivers contained in the paragraph, and to have the insurance policies properly endorsed, if necessary, to prevent the invalidation of the insurance coverage by reason of the mutual waivers contained in this paragraph. 17 HOLD HARMLESS: Lessor shall not be liable to Lessee's employees, agents, invitees, licensees or visitors, or to any other person, for any injury to person or damage to Property on or about the Leased Premises caused by the negligence or misconduct of Lessee, its agents, servants or employees, or of any other person entering upon the Leased Premises under express or implied invitation by Lessee, or caused by the Building and improvements located on the Leased Premises becoming out of repair, or caused by leakage of gas, oil, water or steam or by electricity emanating from the Leased Premises (1). Lessee agrees to indemnify and hold harmless Lessor of and from any loss, attorney's fees, and expenses for claims arising out of any such damage or injury. (2) 18 QUIET ENJOYMENT: Lessor warrants that it has full right to execute and to perform this Lease and to grant the estate demised and that Lessee, upon payment of the required rents and performing the terms, conditions, covenants and agreements contained in this Lease, shall peaceably and quietly have, hold and enjoy the Lease Premises during the full term of this Lease as well as any extension or renewal thereof. 19 LESSOR'S RIGHT OF ENTRY: Lessor shall have the right but not the obligation, at all reasonable hours, (3) to enter the Leased Premises for the following reasons; inspection; cleaning or making repairs; making alterations or additions as Lessor may deem necessary or desirable; determining Lessee's use of the Lease Premises, or determining if any act of default under this Lease has occurred; or to show the Leased Premises to prospective Lessees during the last (4) of the term of this Lease. 20 ASSIGNMENT OR SUBLEASE; Lessor shall have the right to transfer and assign, in whole or in part, its rights and obligations in the Building and Property that are the subject of this Lease. Lessee shall not assign this Lease or sublet all or any part of the Leased Premises without the prior written consent of Lessor (5). Furthermore, Lessor shall not be required to consent to an assignment or subletting unless Lessee has fully informed Lessor of the terms of such assignment or subletting and agrees in writing to pay Lessor fifty percent (50%) of any amounts received by Lessee from such assignee or sublessee in excess of the rent payable hereunder and that failure to pay same shall constitute and event of default hereunder. In the event of any subletting Lessee shall nevertheless at all times remain fully responsible and liable for the payment of the rent and for compliance with all of its other obligations under the terms, provisions and covenants of this Lease. Upon the occurrence of an "event of default" as defined herein, if all or any part of the Leased Premises are then sublet, Lessor, in addition to any other remedies provided by this Lessee or provided by law, may, as its option, collect directly from the sublessee all rents becoming due to Lessee by reason of the sublease, and Lessor shall have a security interest in all properties on the Leased Premises to secure payment of such sums. Any collection directly by Lessor from the sublessee shall not be construed to constitute a novation or a release of Lessee for the further performance of its obligation under this Lease. (1) unless caused by the negligence of Lessor, its agents and employees (2) Lessee shall not be liable to Lessor's employees, agents, invitees, licensees or visitors, or to any other person for any injury to person or damage to property on or about the Leased Premises caused either in whole or in part by the negligence or misconduct of Lessor, its agents, servants or employees, or any other person entering upon the Leased Premises under express or implied invitation of Lessor. Lessor agrees to indemnify and hold harmless Lessee of and from any Loss, attorney's fees, expenses or claims arising out of any such damage or injury. (3) and upon prior notice to Lessee except in the case of an emergency (4) nine (9) months (5) which consent shall not be unreasonably withheld. By way of example but not by way of limitation, Lessor will not be deemed to have unreasonably withheld its consent to a proposed assignee or subtenant if (a) in the reasonable judgment of Lessor such proposed assignee/subtenant is of a character or in engaged in a business which is not in keeping with the standards of Lessor for the Building or the Park; (b) in the reasonable judgment of Lessor, any purpose for which the proposed assignee/subtenant intends to use the Leased Premises is not in keeping with the standards of Lessor for the Building or the Park; provided, however, in no event, may ann purpose for which the proposed assignee/subtenant intends to use the Leased Premises be in violation of this Lease; or (c) the proposed assignee/ subtenant is not, in the reasonable opinion of Lessor, at least as financially responsible as Lessee was expected to be at the time of execution of this Lease. In relation to the foregoing, Lessee agrees to require any proposed subtenant/assignee to provide Lessor with reliable information which will allow Lessor to assess whether the proposed subtenant /assignee is a reputable and financially responsible entity. 21 INTENTIANALLY LEFT BLANK 22 DEFAULT BY LESSEE: The occurrence of any one of the following events shall automatically (without any need for prior notice or demand) constitute an event of default hereunder; (a) Lessee shall fail to pay when due any installment of rent or any other payment required pursuant to this Lease; (1) (b) INTENTIONALLY LEFT BLANK (c) Lessee shall fail to comply with any term, provision or covenant of this Lease, other than the payment of rent, and the failure is not cured within thirty (30) days after written notice to Lessee; (1a) (d) Lessee shall file a petition or be adjudged bankrupt or insolvent under the National Bankruptcy Act, as amended, or any similar law or statue of the United States or any state; or a receiver or trustee shall be appointed for all or substantially all of the assets of Lessee; or Lessee shall make a transfer in fraud of creditors or shall make an assignment for the benefit of creditors or (e) Lessee shall do or permit to be done any act which results in a lien being filed against the Leased Premises or the Building and/or Property of which the Leased Premises are a part (2). 23 REMEDIES FOR LESSEE'S DEFAULT: Upon the occurrence of any event of default set forth in this Lease, Lessor shall have the option to pursue any one or more of the following remedies without any notice or demand: (a) Terminate this Lease, in which event Lessee shall immediately surrender the Leased Premises to Lessor, and if Lessee fails to surrender the Leased Premises, Lessor may, without prejudice to any other remedy which it may have for possession or arrearage in rent, enter upon and take possession of the Leased Premises, and lock out, expel, or remove Lessee and any other person who may be occupying all or any part of the Lease Premises without being liable for prosecution or any claim for damages. Lessee agrees to pay on demand the amount of all loss and damage which Lessor may suffer by reason of termination of the Lease under this subparagraph, whether through inability to relet the Leased Premises on satisfactory terms or otherwise. (b) enter upon and take possession of the Leased Premises, and lock out, expel or remove Lessee and any other person who may be occupying all or any part of the Leased Premises without being liable for any claim for any claim for damages, and relet the Leased Premises on behalf of the Lessee and receive directly the rent by reason of the reletting. Lessee agrees to pay Lessor on demand any deficiency that may arise by reason of any reletting of the Leased Premises; further, Lessee agrees to reimburse Lessor for any 93) expenditures made by it for remodeling or repairing in order to relet the Leased Premises. (c) Enter upon the Leased Premises, without being liable for prosecution of any claim for damages, and do whatever Lessee is obligated to do under the terms of this Lease. Lessee agrees to reimburse Lessor on demand of any expenses which Lessor may reasonably incur in effecting compliance with Lessee's obligations under this Lease; further; Lessee agrees that Lessor shall not be liable for any damages resulting to Lessee from effecting compliance with Lessee's obligations under this subparagraph. (d) Declare to be due and payable immediately the entire amount of the unpaid total rental for the balance of the term of the Lease and other sums which would become due and payable during the remainder of the term, discounted to the present value by using a discount rate equal to ten percent (10%) annually. Upon such acceleration of such amounts, Lessee agrees to pay the same at once, together with the total rental and other amount theretofore due, at Lessor's address as provided herein; provided, however, that such payment shall not constitute a penalty or forfeiture but shall constitute liquidated damages for Lessee's failure to comply with the terms and provisions of this Lease. Any specification herein of Lessor's remedies shall not be deemed to be exclusive; but said remedies shall be in addition to all other remedies in its favor, howsoever existing, and shall be accumulative. (4) (1) after ten (10) days written notice to Lessee. Notwithstanding the foregoing, Lessee shall only be entitled to written notice of Lessor's failure to receive any installment due, two (2) times during each lease year. (1a) or if such default cannot be cured within said thirty (30) day period, then such longer period as may be reasonably necessary provided Lessee diligently and continuously pursues such cure (2) and does not have such lien removed within thirty (30) days after written notice of the existence of said lien by Lessor to Lessee (3) reasonable (4) Notwithstanding any other language continued in this paragraph 23 or elsewhere in this lease to the contrary, it is understood and agreed that should an event of default occur within the initial sixty (60) months of the term hereof and as a result Lessor elects to proceed under any of the remedies provided for in subparagraphs 23 (a0 (b) (c) or (d) or any other remedy provided for by law or in equity, this lease shall be deemed to be for sixty (60) months ending September 30, 1998. Lessee's obligations with respect to any such event of default shall be limited to only those remedies, and damages relating to and/or rental amounts becoming due during the initial sixty 960) months of the term hereof. 24 WAIVER OF DEFAULT OR REMEDY: Failure of Lessor to declare an event of default immediately upon its occurrence, or delay in taking any action in connection with an event of default, shall not constitute a waiver of the default, but Lessor shall have the right to declare the default at any time (1) and take such action as is lawful or authorized under this lease. Pursuit of any one or more of the remedies set forth in paragraph 23 above shall not preclude pursuit of any one or more of the other remedies provided elsewhere in this Lease or provided by law, nor shall pursuit of any remedy provided constitute forfeiture or waiver of any rent or damages accruing to Lessor by reasons of the violation of any of the terms, provisions or covenants of this Lease. Failure by Lessor to enforce one or more of the remedies provided upon an event of default shall not be deemed or construed to constitute a waiver of the default or of any other violation or breach of any of the terms, provisions and covenants contained in this Lease. 25 ACTS OF GOD: Neither Lessor nor Lessee shall be required to perform any covenant or obligation in this Lease, or be liable in damages to Lessee, so long as the performance or non-performance of the covenant or obligation is delayed, caused by or prevented by an act of God or force majoure. (2) 26 ATTORNEY'S FEES: In the event either party employs an attorney to enforce or defend any claim or cause of action relating to this Lease, the prevailing party therein shall be entitled to recover its reasonable attorney's fees (2a) and costs from the other, and the other shall so pay. 27 HOLDING OVER:In the event of holding over by Lessee after the expiration or termination of this Lease, the hold over shall be as a "tenant at sufferance" and all of the terms and all of the terms and provisions of this Lease shall be applicable during that period, except that Lessee shall pay Lessor as rental for the period of such hold over an amount equal to (3) of the rent which would have been payable by Lessee had the hold over period been a part of the original term of this Lease. Lessee agrees to vacate and deliver the Lease Premises to Lessor upon Lessee's receipt of notice from Lessor to vacate. The rental payable during the hold over period shall be payable to Lessor on demand. No holding over by Lessee, whether with or without consent of Lessor, shall operate to extend this Lease except as otherwise expressly provided. 28 ESTOPPEL CERTIFICATES: Lessee accepts this Lease subject and subordinate to any recorded first mortgage or a security deed lien presently existing or hereafter created upon the Leased Premises. Lessor is hereby irrevocably vested with full power and authority to subordinate Lessee's interest under this Lease to any first mortgage or security deed lien hereafter placed on the Leased premises, and Lessee agrees upon demand to execute additional instruments subordinating this Leasse as Lessor may require. If the interests of Lessor under this Lease shall be transferred by reason of foreclosure or other proceedings for enforcement of any first mortgage or security deed on the Leased Premises, Lessee shall be bound to the transferee (sometimes called the "Purchaser"), at the option of the Purchaser, under the terms, covenants and conditions of this Lease for the balance of the term remaining, and any extensions or renewals, with the same force and effect as if the Purchaser were Lessor under this Lease, and, if requested by Purchaser, Lessee agrees to attorn to the Purchaser, including the first mortgagee under any such mortgage if it be the Purchaser, as its Lessor. (4) 29 ESTOPPEL CERTIFICATES: Lessee agrees to furnish within ten (10) days and, from time to time, upon request of Lessor or Lessor's mortgagee, a statement certifying, if applicable, that Lessee is in possession of the Leased Premises; the Lease Premises are acceptable; the Lease is in full force and effect; the Lease is unmodified; Lessee claims no present charge, lien, or claim of offset against rent; the rent is paid for the current month, but is not prepaid for more than one month and will not be prepaid for more than one month in advance; there is no existing default by reason of some act or omission be Lessor; and such other matters as may be reasonable required by Lessor or Lessor's mortgagee. 30 SUCCESSORS: This Lease shall be binding upon and inure to the benefit of Lessor and Lessee and their respective heirs, personal representatives, successors and assigns. It is hereby covenanted and agreed that should Lessor's interest in the Leased Premises cease to exist for any reason during the term of this Lease, then notwithstanding the happening of such event this Lease nevertheless shall remain unimpaired and in full force and effect and Lessee hereunder agrees to attorn to the then owner of the Leased Premises. 31 DEFINITIONS: he following definitions apply to the terms set forth below as used in this Lease: (a) INTENTIONALLY LEFT BLANK (b) An `act of God" or "force majeure" is defined for purposes of this Lease as strikes, lockouts, sit-downs, material or labor restrictions by any governmental authority, unusual transportation delays, riots, floods, washouts, explosions, earthquakes, fire, storms, weather (including wet grounds or inclement weather which prevents construction), acts of the public enemy, wars, insurrections and nay other causes not reasonably within the control of Lessor or Lessee and which by the exercise of due diligence Lessor or Lessee is unable, wholly or in par, to prevent or overcome. (c) The "Commencement Date" shall be the date set forth in paragraph 2. The "Commencement Date" shall constitute the commencement of this Lease for all purposes, whether or not Lessee has actually taken possession. 32 MISCELLANEOUS: the captions appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such paragraph. If any provision of this Lease shall ever be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Lease, and such other provisions shall continue in full force and effect. (1) prior to Lessee's cure of such default (2) provided; however, this shall not apply to Lessee's obligation to pay any installment of rent or additional rent due. (2a) actually incurred and calculated at customary hourly rates (3) one hundred and fifty percent (150%) (4) Lessor agrees to request that the holder of any recorded first mortgage execute and deliver a non-disturbance agreement to Lessee in form and substance satisfactory to such holder. 33. NOTICE: (a) All rent and other payments required to be made by Lessee shall be payable to Lessor at the address et forth below: b. All payments required to be made by Lessor to Lessee shall be payable to Lessee at the address first set forth below or to such other address Lessee may direct by written notice to Lessor. c. Any notice of document required or permitted to be delivered by this Lease shall be deemed to be delivered (whether or not actually received) (1) deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the parties at the respective address set our below: LESSOR: LESSEE: Woodlands Joint Venture No. V534-3 Mr. Michael W. Tomkin c/o Bullock, Terrell and Mannelly President Property Management Department Sparks Exhibits, Inc. 400 Perimeter Center Terrace, Suite 145 2828 Charter Road Atlanta, Georgia 30346 Philadelphia, Pennsylvania 19154 with a copy to: with a copy to: Regional Counsel Attn: President The Prudential Property Casualty Marlton Technologies, Inc. One Ravinia Drive, Suite 1400 Balapointe Office Centre Atlanta, Georgia 30346 111 Presidential Blvd., Suite 101 Bala Cynwyd, PA 19004 34. BROKERAGE COMMISSIONS: Except with respect to New South Commercial Properties ("Broker"), Lessee warrants and represents to Lessor that Lessee has not employed or retained any Broker, finder or agent in connection with the negotiation or execution of this Lease and, except with respect to Broker who's commission is to be paid by Lessor, agrees to indemnify and hold Lessor harmless from and against any loss, cost, damage, liability or expense incurred by Lessor resulting from attributable to, any claim for a broker's fee, finder's fee or real estate commission owned by Lessee or claimed by any party claiming by, through or under Lessee or claiming to be Lessee's agent. 35. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES: It is expressly agreed by Lessee (2) as a material consideration for the execution of this Lease, that this Lease, with the specific references to written extrinsic documents, is the entire agreement of the parties; that there are, and were, no verbal representations, warranties, understandings, stipulations, agreements or promises pertaining to this Lease or the expressly mentioned written extrinsic documents not incorporate in writing in this Lease. Lessor and lessee expressly agree that there are and shall be no implied warranties of merchantability, habitability, fitness for a particular purpose or of any other kind arising out of this Lease and there are no warranties which extend beyond those expressly set forth in this Lease. It is likewise agreed that this Lease may not be altered, waived, amended or extended except by an instrument in writing signed by both Lessor and Lessee. 36. TIME IS OF THE ESSENCE: Time is the essence of this Lease. 37. SPECIAL STIPULATIONS: The special stipulations, if any, attached hereto as exhibit "D" are made a part hereof by this reference, and to the extent they conflict with any of the foregoing provisions, they shall control. 38. ADMINISTRATIVE CHARGES: In the event any check, bank draft or negotiable instrument given for any money payment hereunder stall be dishonored at any time and from time to time for any reason whatsoever not attributable to Lessor, Lessor shall be entitled, in addition to any other remedy that may be available, to make a administrative charge of $25.00. 39. NONWAIVER: No waiver of any covenant or condition of this Lease by either party shall be deemed to imply or constitute a further waiver of the same covenant or condition or any other covenant or condition of this Lease. 40. PARTIAL INVALIDITY: If any term or provision of this Lease or the application thereof to any person or circumstance shall to any extend be invalid or unenforceable (3) the remainder of this Lease or the application of such term or provision to persons or circumstances other than those as to which it is help invalid or unenforceable shall not be affected thereby and such term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. 41. LIMITATION OF LIABILITY: The term Lessor as used in this Lease shall be limited to mean and include only the owner or owners, at the time in question, of the fee of the Leased Premises and in no event shall such term or any covenant be construed to impose a personal obligation upon a property manager or leasing agent who is an independent real estate broker and, as such, an independent contractor authorized by the owner of the Leased Premises to secure leases and to manage the Leased Premises pursuant to a written management contract. Nothing herein shall be construed to imply or impose upon either a property manager or leasing broker of the owner of the Leased Premises, a general agency relationship. In the event of any transfer of title to such fee, the Lessor herein shall be automatically freed and relieved from all personal liability with respect to performance of any covenant or obligation on the part of Lessor, provided any deposits or advance rents held by Lessor are turned over to the grantee and said grantee expressly assumes, subject to the limitations of this paragraph, all the terms, covenants and conditions of this Lease to be performed on the part of Lessor, it being intended hereby that the covenants and obligations contained in this Lease on the part of Lessor shall, subject as aforesaid, be binding on Lessor, its successors and assign, only during their respective successive periods of ownership. 42. USUFRUCT: This Lease shall create the relationship of landlord and tenant between Lessor and Lessee; no estate shall pass out of Lessor and Lessee has only a usufruct, not subject to levy and sale. (1) three (3) days after (2) and Lessor (3) and shall not prevent or materially impair Lessee's use of the Leased Premises As to Lessor, signed, sealed and Delivered in the presence of: LESSOR: Woodlands Joint Venture No. V 534-3 By: Woodlands Building Partnership No. 534-3 Co-Venturer /s/ Lisa A. Robinson By: /s/ J. B. Mannelly ---------------- -------------- Witness General Partner (SEAL) /s/ Nancy L. Sellers ---------------- Notary Public By: The Prudential Insurance Company of America Co-Venturer /s/ G. Gregory Boyd By: /s/ James W. Freeman --------------- ---------------- Witness Vice President (Corporate Seal) ________________________________ Notary Public As to Lessee, signed sealed and Delivered in the presence of: LESSEE: By: Sparks Exhibits, Inc. /s/ Alan I. Goldberg, Secretary By: /s/ Michael Tomkin --------------------------- -------------- Witness President (Corporate Seal) ________________________________ Notary Public EXHIBIT "D" SPECIAL STIPULATIONS 1. BASE RENT SCHEDULE: Lessor and Lessee agree that subject to any operating expenses applicable to the Leased Premises as provided for in the Lease herein, Lessee shall make base rental payments in accordance with the following schedule:
Base Rental Per Months Square Foot Annualized Monthly Base Rental - ------ ---------------------- ------------------- October 1, 1993-March 31, 1994 $0.00 $ 0.00 April 1, 1994-September 30, 1994 $2.75 $18,534.08 October 1, 1994-September 30, 1998 $3.20 $ 21,566.93 October 1, 1998-September 30, 2003 $3.50 $ 23,588.83
2. COVENANTS: Lessor and Lessee acknowledge that this lease is subject to those pre-specified requirements set forth in the Declaration of Protective Covenants and Restrictions for Riverside...a business environment filed and recorded August 19, 1987 in Book 572, Page 621 of Cobb County and the Declaration of Protective Covenants and Restrictions for Riverside...a business environment (The Woodlands) filed and recorded October 20, 1989, in Book 5516, Page 0286 of Cobb County and any amendments to the above referenced covenants that may be required from time to time. Lessor warrants that such requirements will not materially interfere with Lessee's use of the Leased Premises. 3. LESSEE'S CONCELLATION OPTION: Lessee shall have the option to terminate this Lease effective September 30, 1998 upon the following terms and conditions: (a) Lessee shall give Lessor at least nine (9) months prior written notice of Lessee's election to cancel the Lease pursuant to this Section 3. Any such notice, to be effective, must be received by Lessor on or before December 31, 1997, and must be accompanied by payment in good funds of a termination fee of $21,566.93. (b) Any cancellation of the Lease pursuant tot his Section 3 shall be effective on September 30, 1998. (c) Notwithstanding any notice of cancellation. Lessee shall fully perform all of its obligations pursuant to this Lease through September 30, 1998. (d) On or before September 30, 1998, Lessee shall restore the Leased Premises to its original condition as it existed at the Commencement Date, normal war and tear excepted. 4. CONSENT TO SUBLEASE TO GRAFX: Notwithstanding the language contained in paragraph 20 hereof, Lessor hereby consents to the subletting by Lessee of a portion of the Leased Premises, not to exceed 10,000 square feet, to Grafx, Inc. and agrees to waive its interest in the potential rental overages to be paid by Grafx to Lessee. It is understood and agreed that Grafx inc. is a subcontractor of Lessee performing certain commercial graphics work for Lessee and it is of substantial benefit to Lessee to have Grafx Inc. located in space readily accessible to Lessee. In granting its consent to this limited subletting, Lessor has in no way limited or waived its rights in relation to any additional proposed assignment or subletting of space and any additional subletting or assignment made by Lessee shall require the prior written consent of Lessor. In addition, Lessor's consent to the sublease in no way reduces Lessee's obligation to pay the full rental, additional rental and other amounts due hereunder. Furthermore, Lessee shall be responsible for monitoring Grafx Inc.'s occupancy of the Leased Premises to ensure that Grafx inc. complies with each and every term and provision of this Lease. 5. RIGHT OF FIRST OFFERING: (a) Provided that the Lessee is not in default under the term of this Lease Agreement and has not assigned or sublet all or any portion of the Leased Premises, excepting the sublease previously approved herein for Grafx, Lessor hereby grants to Lessee the right to lease approximately 10,000 square feet in the Building adjacent to the Leased Premises in accordance with the terms and conditions set forth in this section. (b) In the event Lessor has a bonafide prospective tenant ("Prospect") interested in leasing all or any portion of the space outlined on Exhibit "G" attached hereto (the "Expansion Space"), Lessor shall so advise Lessee in writing of the interest of such Prospect (the "Lessor's Notice"). Lessee shall have ten (10) business days from receipt of Lessor's Notice within which to advise Lessor that it exercises the right to Lease the Expansion Space in accordance with the terms of this section ("Lessee's Notice"). In the event Lessee shall fail to deliver Lessee's Notice to Lessor within said the (10) business day period, then all right granted to Lessee hereunder shall terminate and be of no further force and effect. Upon delivery of Lessee's Notice, Lessee shall be entitled to lease the Expansion Space in its entirety under the terms of this Lease except as follows in subparagraph (c) below: (c) In the event Lessee exercises the right to lease the Expansion Space, the per square foot rental rate for the Expansion Space shall be equal to the per square foot rental rate being paid for the original Leased Premises at the time the Lessee leases such expansion space and shall continue thereafter in accordance with the Exhibit "D" Special Stipulation paragraph1. The Lessor shall construct standard warehouse heat, light, electrical and a warehouse demising wall in the Expansion Space and no other tenant improvements. The term for the Expansion Space shall be co- terminous with that of the original Lease Premises. 6. LANDLORD'S WAIVER: As an accommodation to Lessee and in order to facilitate the conducting of Lessee's business within the Leased premises, Lessor agrees to execute and deliver, at any time during the term hereof, such document or documents as may be reasonably required by Lessee's institutional lenders evidencing the waiver by Lessor of any lien rights which Lessor might have in and to all personalty and trade fixture items of Lessee which might now or hereafter be located within the Leased Premises. GUARANTEE OF LESSEE'S OBLIGATIONS FOR AND IN CONSIDERATION OF the making of that certain Lease Agreement, dated _______, 19__ (the "Lease") from WOODLANDS JOINT VENTURE NO. V534-3 ("Lessor") to SPARKS EXHIBITS INC. ("Lessee"), and in consideration of the sum of TEN DOLLARS ($10.00) in hand paid to the undersigned, Sparks Exhibits Corporation, a Pennsylvania Corporation ("Guarantor"), the undersigned Guarantor does hereby, subject to any defenses available to Lessee under the Lease, guarantee to Lessor the full and prompt payment and performance, as and when due, whether by acceleration or otherwise, of all obligations of Lessee under the Lease, and Guarantor does hereby further agree that: (a) This Guarantee shall apply with full force and effect to any amendment or modification of the Lease and any extension or renewal of the term of the Lease, regardless of whether Guarantor shall have received notice thereof or shall have consented thereto; (b) No release or application by Lessor of any security deposit or any other collateral now or hereafter held by Lessor as security for the performance of the obligations of Lessee under the Lease shall impair or affect in any manner the obligations of Guarantor hereunder; (c) Guarantor shall pay to Lessor all reasonable expenses (including attorney's fees) paid or incurred by Lessor in endeavoring to collect any sums due from Lessor or Guarantor to Lessor or to enforce the obligations of Lessee under the Lease or the Guarantor hereunder; (d) If Guarantor should at any time be composed of more than one person or entity, then each such person and entity shall be jointly and severally bound hereby and liable hereunder, and no release of liability, in whole or in part, granted by Lessor to any one or more such persons or entities shall impair or affect any manner the liability of any person or entity not so released. (e) Guarantor hereby waives and agrees not to assert or take advantage of any defense against enforcement of this Guarantee arising out of any claim of incapacity, lack of authority, death, or disability; any failure of Lessor to give notice of acceptance of this Guarantee, presentment, demand for payment, protest, dishonor, default or any other notice whatsoever, except as expressly provided in the Lease or herein; and any lack of diligence by Lessor in connection with the enforcement of its rights under the Lease and/or this Guarantee; provided Guarantor does not waive any defenses available to Lessee under the Lease, including but no limited to any failure by Lessor to commence an action against Lessee as prescribed in Section 10-7-24 of the Official Code of Georgia Annoted. (f) This is a Guarantee of payment and performance and not of collection, and the liability of Guarantor under this Guarantee shall be direct and immediate and not conditional or contingent upon the pursuit of any remedies against Lessee or any other person or entity, and Guarantor waives any right Guarantor may have to require that an action be brought against Lessee or any other person or entity, or that resort be had to any security deposit or other collateral, prior to enforcing the obligations or Guarantor hereunder; (g) Until all of the obligations of Lessee to Lessor have been fully paid and performed, Guarantor shall have no right of subrogation by way of Lessor against Lessee; (h) The Lease and this Guarantee are made and intended as Georgia contract and shall be so construed; (i) Guarantor hereby submits to personal jurisdiction in the State of Georgia for the enforcement of this Guarantee and agrees that service of process may be made and personal jurisdiction over Guarantor obtained by the serving of a copy of the summons and complaint upon Guarantor at the address of Guarantor set forth below; (j) Guarantor warrants to Lessor that any financial statements previously provided by Guarantor to Lessor are true and correct in all material respects as of the date thereof; (k) This Guarantee may not be changed orally, and no obligation or Guarantor can be released or waived by Lessor except by a written instrument signed by Lessor; (l) All demands, requests, or other notices provided for or permitted to be given to Guarantor pursuant to the Lease or this Guarantee shall be deemed to have been sufficiently given or served (without limitation on other acceptable means of delivery or service) if mailed by certified United States mail, postage pre-paid, return receipt requested, to Guarantor at Guarantor's address set forth below, and the effective date of any such notice so maidled shall be the date three (3) days after such notice is deposited in the mail; (m) The provisions of this Guarantee shall be binding upon Guarantor and the heirs, executors, legal representative, successors, and assigns of Guarantor, and shall inure to the benefit of Lessor, and the heirs, executors, legal representative, successors, successors-in-title, and assigns of Lessor; (n) If any provision of this Guarantee is held to be invalid or unenforceable, the same shall not effect the validity or enforceability of any other provision hereof. (o) Notwithstanding any provision of this Guarantee to the contrary, no event of default under the Lease shall be deemed to occur until such time as Guarantor has received notice and an opportunity to cure, on the same terms and in the same manner as notice and opportunity to cure is provided to Lessee under the Lease. No event of default shall occur under Subparagraph 22(d) of the Lease so long as Guarantor is not a party of any such proceedings and Guarantor (directly or through Lessee) causes the Lease to be performed in accordance with its terms. IN WITHNESS WHEREOF, Guarantor has executed this Guarantee under seal this ___ day of ____ 199_. Signed, sealed and delivered In the presence of: GUARANTOR; Sparks Exhibits Corporation ____________________________ By: /s/ Michael Tomkin Witness -------------- Its: President ____________________________ Attest: /s/ Alan I. Goldberg, Secretary Notary Public ----------------- Address of Guarantor: 2828 Charter Road Philadelphia, PA 19154 EX-10.21 5 loan-security_agt.txt EX-10(U) LOAN AND SECURITY AGREEMENT EXHIBIT 10(u) LOAN AND SECURITY AGREEMENT DATED AS OF FEBRUARY 6, 2004 AMONG GENERAL ELECTRIC CAPITAL CORPORATION AS LENDER AND SPARKS EXHIBITS & ENVIRONMENTS CORP. SPARKS EXHIBITS & ENVIRONMENTS, LTD. SPARKS EXHIBITS & ENVIRONMENTS, inc. and dms store fixtures llc AS BORROWERS INDEX OF EXHIBITS AND SCHEDULES Schedule A - Definitions Schedule B - Lender's and Borrowers' Addresses for Notices Schedule C - Letters of Credit Schedule D - Cash Management System Schedule E - Fees and Expenses Schedule F - Schedule of Documents Schedule G - Financial Covenants Disclosure Schedule (3.2) - Places of Business; Corporate Names Disclosure Schedule (3.6) - Real Estate Disclosure Schedule (3.7) - Stock; Affiliates Disclosure Schedule (3.9) - Taxes Disclosure Schedule (3.11) - ERISA Disclosure Schedule (3.12) - Litigation Disclosure Schedule (3.13) - Intellectual Property Disclosure Schedule (3.15) - Environmental Matters Disclosure Schedule (3.16) - Insurance Disclosure Schedule (3.18) - Contracts (Offset Risk) Disclosure Schedule (5(b)) - Indebtedness Disclosure Schedule (5(e)) - Liens Disclosure Schedule (6.1) - Actions to Perfect Liens Exhibit A - Form of Notice of Revolving Credit Advance Exhibit B - Other Reports and Information Exhibit C - Form of Borrowing Base Certificate Exhibit C-1 - Form of Inventory Rollforward and Reconciliation Exhibit D - Form of Accounts Payable Analysis Exhibit E - Form of Accounts Receivable Rollforward Analysis Exhibit F - Form of Revolving Credit Note Exhibit G - Form of Term Note (Not Used) Exhibit H - Form of Secretarial Certificate Exhibit I - Form of Power of Attorney Exhibit J - Form of Certificate of Compliance Exhibit K - Form of Intercreditor and Subordination Agreement 2 GE Capital TRANSACTION SUMMARY AS OF THE DATE OF THIS AGREEMENT REVOLVING CREDIT LOAN
Maximum Amount: $12,000,000 Term: Three (3) years Revolving Credit Rate: Index Rate plus 4.50% (subject to adjustment as set forth herein) Letter of Credit Subfacility: $3,000,000 Borrowing Base: (i) up to 85% of the value (as determined by Lender in accordance with this Agreement) of each Borrower's Eligible Accounts; provided, that Lender shall reduce the foregoing percentage by one percentage point for each percentage point that the dilution of such Borrower's Accounts (calculated by Lender as the average dilution over the most recent three months) exceeds 5%, plus (ii) 80% of the value (as determined by Lender in accordance with this Agreement) of each Borrower's Eligible Shipped/Unbilled Assets; provided however that the aggregate amount of advances outstanding at any time against all Borrowers' Eligible Shipped/Unbilled Assets shall not exceed $2,500,000, plus (iii) the sum of (a) 50% of the value of each Borrower's Eligible Inventory consisting of raw materials, in each case as determined by Lender in accordance with this Agreement, valued on a first-in, first-out basis (at the lower of cost or market); provided however, that the aggregate amount of advances outstanding at any time against all Borrowers' Eligible Inventory consisting of raw materials shall not exceed $500,000, and (b) 60% of the value of each Borrower's Eligible Inventory consisting of finished goods, in each case as determined by Lender in accordance with this Agreement, valued on a first-in, first-out basis (at the lower of cost or market); provided however, that the aggregate amount of advances outstanding at any time against all Borrowers' Eligible Inventory consisting of finished goods designated for (1) any single customer shall not exceed $2,000,000, and (2) all customers shall not exceed $3,000,000. FEES Closing Fee: $45,000 Collateral Monitoring Fee: $24,000 per annum (subject to adjustment as set forth herein) Unused Line Fee: 0.25% per annum Letter of Credit Fee: 4.50% per annum Prepayment Fee: 3.00% in year one; 1.50% in year two; and 0.50% in year three (subject to adjustment as set forth herein).
The Loans described generally here are established and governed by the terms and conditions set forth below in this Agreement and the other Loan Documents, and if there is any conflict between this general description and the express terms and conditions below or elsewhere in the Loan Documents, such other express terms and conditions shall control. 3 This LOAN AND SECURITY AGREEMENT is dated as of February ____, 2004, and agreed to by and among 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"), 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"), any other Credit Party executing this Agreement, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("Lender"). Recitals A. Borrowers desire to obtain the Loans and other financial accommodations from Lender and Lender is willing to provide the Loans and accommodations all in accordance with the terms of this Agreement. B. Capitalized terms used herein shall have the meanings assigned to them in Schedule A and, for purposes of this Agreement and the other Loan Documents, the rules of construction set forth in Schedule A shall govern. All Schedules, attachments, addenda and exhibits hereto, or expressly identified to this Agreement, are incorporated herein by reference, and taken together with this Agreement, constitute but a single agreement. Agreement NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, the parties hereto agree as follows: 1. Amount and Terms of Credit 1.1 Loans. (a) Subject to the terms and conditions of this Agreement, from the Closing Date and until the Commitment Termination Date (i) Lender agrees (A) to make available to Borrowers advances (each, a "Revolving Credit Advance") and (B) to incur Letter of Credit Obligations, in an aggregate outstanding amount for any Borrower not to exceed the Borrowing Availability of such Borrower, and (ii) any Borrower may at the request of Leading Borrower as agent for such Borrower from time to time borrow, repay and reborrow, and may cause Lender to incur Letter of Credit Obligations, under this Section 1.1. The Revolving Credit Loan shall be evidenced by, and be repayable in accordance with the terms of, the Revolving Credit Note and this Agreement. (b) Borrower shall request each Revolving Credit Advance by written notice to Lender substantially in the form of Exhibit A (each a "Notice of Revolving Credit Advance") given no later than 1:00 P.M. (New York City time) on the Business Day of the proposed advance. Lender shall be fully protected under this Agreement in relying upon, and shall be entitled to rely upon, (i) any Notice of Revolving Credit Advance believed by Lender to be genuine, and (ii) the assumption that the Persons making or executing and delivering (or purported to be so acting) a Notice of Revolving Credit Advance were duly authorized, unless the responsible individual acting thereon for Lender shall have actual knowledge to the contrary. As an accommodation to Borrowers, Lender may permit telephonic or facsimile requests or Electronic Transmissions (as defined in Section 1.1(e) below) for a Revolving Credit Advance and Electronic Transmission or facsimile transmittal of instructions, authorizations, agreements or reports to Lender by any Borrower; Electronic Transmission authorization shall be subject to Section 1.1(e) below. If Lender permits any such means of communication by Borrowers, unless Borrowers specifically direct Lender in writing not to accept or act upon telephonic or facsimile communications or Electronic Transmission from any Borrower, Lender shall have no liability to any Borrower for any loss or damage suffered by any Borrower as a result of Lender's honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or by Electronic Transmission and purporting to have been sent to Lender by any Borrower and Lender shall have no duty to verify the origin of any such communication or the identity or authority of the Person sending it. (c) In making any Loan hereunder Lender shall be entitled to rely upon the most recent Borrowing Base Certificate delivered to Lender by such Borrower and other information available to Lender. Lender shall be under no obligation 4 to make any further Revolving Credit Advance to any Borrower or incur any other Obligation if any Borrower shall have failed to deliver a Borrowing Base Certificate to Lender by the time specified in Section 4.1(b). (d) Letters of Credit. Subject to the terms and conditions of this Agreement, including Schedule C, each Borrower shall have the right to request, and Lender agrees to incur, the Letter of Credit Obligations for the account of such Borrower in accordance with Schedule C. (e) Electronic Transmission. Lender may authorize Borrower to send to Lender or receive from Lender instructions, notices, communications, requests, authorizations, agreements and reports to be delivered to or transmitted by Lender under this Agreement by electronic means (each, an "Electronic Transmission"). Any documents authorized by Lender to be sent by Electronic Transmission shall be deemed: (a) to have been transmitted by the person indicated on or reflected by the Electronic Transmission as the sender; (b) to have been transmitted by a person duly authorized to do so, and (c) to have been received by the person for whom such documents were intended on the actual date of receipt of such documents, unless such day is not a Business Day, in which event such documents shall be deemed to have been received on the first Business Day following actual receipt. Each party may rely upon, and assume the authenticity of, any signatures contained in any documents Lender authorizes to be transmitted by Electronic Transmission, and such signatures shall have the same effect and weight as original signatures and shall be sufficient to satisfy the requirements of the UCC or any applicable statute, rule of law, or rule of evidence. Electronic Transmissions which are not readily capable of bearing either a signature or a reproduction of a signature shall be deemed signed, for purposes of the UCC and all other rules of law and evidence, if an electronic symbol, encryption, or process (including, without limitation, the name or an abbreviation of the name of the party sending the Electronic Transmission) has been attached to or logically associated with the Electronic Transmission with the intent to sign, authenticate, adopt, or accept the Electronic Transmission. The parties agree not to contest the validity or enforceability of an Electronic Transmission under the provisions of any applicable law relating to whether certain agreements are to be in a writing or signed by the party to be bound thereby. However, nothing herein shall limit a party's right to contest whether an Electronic Transmission maintained hereunder has been altered after receipt. On the request of the sender, the receiving party shall immediately confirm the receipt of any Electronic Transmission. If any Electronic Transmission is received in an unintelligible or garbled form, the receiving party shall notify the transmitting party in a reasonable manner promptly and in any event within one (1) Business Day after the receiving party first detects the error. Upon receipt of such notice, the transmitting party shall retransmit the Electronic Transmission. If the receiving party fails timely to inform the transmitting party of an error in the received, but garbled Electronic Transmission, the transmitting party's record of the contents of such Electronic Transmission shall control. The sender of any documents transmitted by Electronic Transmission shall maintain backup paper documents for such documents until at least the third anniversary of the date of the termination of this Agreement and shall, on request of the receiving party, furnish such backup paper documents within two Business Days of the receipt of a request therefor; provided, however, that the absence of any such backup documentation with respect to a request for a Revolving Credit Advance by any Borrower shall not affect the validity of any request for a Revolving Credit Advance transmitted to Lender, whether by Electronic Transmission or otherwise. Each party may rely upon documents authorized by Lender to be sent by Electronic Transmission to the same extent as if original documents had been personally delivered. 1.2 Term and Prepayment. (a) Upon the Commitment Termination Date the obligation of Lender to make Revolving Credit Advances and extend other credit hereunder shall immediately terminate and Borrowers shall pay to Lender in full, in cash: (i) all outstanding Revolving Credit Advances and all accrued but unpaid interest thereon; (ii) an amount sufficient to enable Lender to hold cash collateral as specified in Schedule C; and (iii) all other non-contingent Obligations due to or incurred by Lender. (b) If the Revolving Credit Loan attributable to any Borrower shall at any time exceed such Borrower's Borrowing Availability, then such Borrower shall, within two (2) Business Days thereafter, repay the Revolving Credit Loan in the amount of such excess; provided that any such excess outstanding shall nevertheless constitute Obligations that are evidenced by the Revolving Credit Notes, secured by the Collateral and entitled to all of the benefits of the Loan Documents. (c) Each Borrower shall have the right, at any time upon thirty (30) days' prior written notice to Lender to (i) terminate voluntarily Borrowers' right to receive or benefit from, and Lender's obligation to make and to incur, 5 Revolving Credit Advances and Letter of Credit Obligations and (ii) prepay all of the Obligations. The effective date of termination of the Revolving Credit Loan specified in such notice shall be the Commitment Termination Date. If any Borrower exercises the right of termination and prepayment, or if Lender's obligation to make Loans is terminated for any reason prior to the Stated Expiry Date (including as a result of the occurrence of a Default), Borrowers shall pay to Lender the applicable Prepayment Fee. 1.3 Use of Proceeds. Borrowers shall use the proceeds of the Loans to refinance on the Closing Date certain outstanding Indebtedness as provided in Section 2.1(b) and for working capital and other general corporate purposes. 1.4 Single Loan. The Loans and all of the other Obligations of any Borrower to Lender shall constitute one general obligation of such Borrower secured by all of the Collateral. 1.5 Interest. (a) Each Borrower shall pay interest to Lender on the aggregate outstanding Revolving Credit Advances attributable to such Borrower at a floating rate equal to the Index Rate plus four and one-half percent (4.50%) per annum (the "Revolving Credit Rate"). The Revolving Credit Rate shall be subject to adjustment (up or down) prospectively on an annual basis as determined by the Borrowers' consolidated financial performance, commencing with the first day of the first calendar month that occurs more than five days after delivery to Lender of Borrowers' annual audited Financial Statements for the Fiscal Year ending December 31, 2004 (the "First Adjustment Date"). Adjustments to the Revolving Credit Rate shall be in accordance with the following grid: - ---------------------------------------- -------------------------------------- If the Fixed Charge Coverage Ratio for Then the Revolving Credit Rate shall the Immediately Preceding Fiscal Year be: is: - ---------------------------------------- -------------------------------------- Less than or equal to 1.25 : 1.0 Index Rate + 4.50% - ---------------------------------------- -------------------------------------- Greater than 1.25 : 1.0, but less than Index Rate + 4.00% 1.50 : 1.0 - ---------------------------------------- -------------------------------------- Greater than or equal to 1.50 : 1.0 Index Rate + 3.50% - ---------------------------------------- -------------------------------------- All adjustments in the Revolving Credit Rate after the First Adjustment Date shall be implemented annually on a prospective basis, for each calendar month commencing at least five days after the date of delivery to Lender of the Borrowers' annual audited Financial Statements evidencing the need for an adjustment. Concurrently with the delivery of such Financial Statements, each Borrower shall deliver to Lender a certificate, signed by its chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Revolving Credit Rate. Failure to timely deliver such Financial Statements shall result in an increase in the Revolving Credit Rate to the highest level set forth in the foregoing grid, until the first day of the first calendar month following the delivery of those Financial Statements demonstrating that such an increase is not required. If an Event of Default has occurred and is continuing at the time any reduction in the Revolving Credit Rate is to be implemented, that reduction shall be deferred until the first day of the first calendar month following the date on which such Event of Default is waived in writing by Lender. Additionally, if at any time any other Event of Default shall have occurred and be continuing, the Revolving Credit Rate shall be automatically increased to the highest level set forth in the foregoing grid until the first day of the first calendar month following the date on which such Event of Default is waived in writing by Lender. The increase in the Revolving Credit Rate provided for in the preceding two sentences shall be in addition to any other remedy provided for in this Agreement (including Lender's right to charge the Default Rate). All computations of interest, and all calculations of the Letter of Credit Fee, shall be made by Lender on the basis of a three hundred and sixty (360) day year, in each case for the actual number of days occurring in the period for which such interest or fee is payable. Each determination by Lender of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error. In no event will Lender charge interest at a rate that exceeds the highest rate of interest permissible under any law that a court of competent jurisdiction shall, in a final determination, deem applicable. (b) Interest shall be payable on the outstanding Revolving Credit Advances (i) in arrears for the preceding calendar month on the first day of 6 each calendar month, (ii) on the Commitment Termination Date, and (iii) if any interest accrues or remains payable after the Commitment Termination Date, upon demand by Lender. (c) Effective upon the occurrence of any Event of Default and for so long as any Event of Default shall be continuing, the Revolving Credit Rate and the Letter of Credit Fee shall automatically be increased by three percentage points (3.00%) per annum (such increased rate, the "Default Rate"), and all outstanding Obligations, including unpaid interest and Letter of Credit Fees, shall continue to accrue interest from the date of such Event of Default at the Default Rate applicable to such Obligations. (d) If any interest or any other payment (including Unused Line Fees and Collateral Monitoring Fees) to Lender under this Agreement becomes due and payable on a day other than a Business Day, such payment date shall be extended to the next succeeding Business Day and interest thereon shall be payable at the then applicable rate during such extension. 1.6 Cash Management System. On or prior to the Closing Date and until the Termination Date, each Borrower will establish and maintain the cash management system described in Schedule D. All payments in respect of the Collateral shall be made to or deposited in the blocked or lockbox accounts described in Schedule D in accordance with the terms thereof. 1.7 Fees. Each Borrower agrees to pay to Lender the Fees set forth in Schedule E. 1.8 Receipt of Payments. Each Borrower shall make each payment under this Agreement (not otherwise made pursuant to Section 1.9) without set-off, counterclaim or deduction and free and clear of all Taxes not later than 1:00 P.M. (New York City time) on the day when due in lawful money of the United States of America in immediately available funds to the Collection Account. If any Borrower shall be required by law to deduct any Taxes from any payment to Lender under any Loan Document, then the amount payable to Lender shall be increased so that, after making all required deductions, Lender receives an amount equal to that which it would have received had no such deductions been made. For purposes of computing interest and Fees, all payments shall be deemed received by Lender two (2) Business Days following receipt of immediately available funds in the Collection Account. For purposes of determining the Borrowing Availability, payments shall be deemed received by Lender upon receipt of immediately available funds in the Collection Account. 1.9 Application and Allocation of Payments. Each Borrower irrevocably agrees that Lender shall have the continuing and exclusive right to apply any and all payments against the then due and payable Obligations in such order as Lender may deem advisable. Lender is authorized to, and at its option may (without prior notice or precondition and at any time or times), but shall not be obligated to, make or cause to be made Revolving Credit Advances on behalf of any Borrower for: (a) payment of all Fees, expenses, indemnities, charges, costs, principal, interest, or other Obligations owing by such Borrower under this Agreement or any of the other Loan Documents, (b) the payment, performance or satisfaction of any of such Borrower's obligations with respect to preservation of the Collateral, or (c) any premium in whole or in part required in respect of any of the policies of insurance required by this Agreement, even if the making of any such Revolving Credit Advance causes the outstanding balance of the Revolving Credit Loan attributable to any Borrower to exceed such Borrower's Borrowing Availability, and each Borrower agrees to repay immediately, in cash, any amount by which the Revolving Credit Loan attributable to such Borrower exceeds its Borrowing Availability. 1.10 Accounting. Lender is authorized to record on its books and records the date and amount of each Loan and each payment of principal thereof and such recordation shall constitute prima facie evidence of the accuracy of the information so recorded. Lender shall provide Borrowers on a monthly basis a statement and accounting of such recordations but any failure on the part of the Lender to keep any such recordation (or any errors therein) or to send a statement thereof to any Borrower shall not in any manner affect the obligation of any Borrower to repay any of the Obligations. Except to the extent that any Borrower shall, within ninety (90) days after such statement and accounting is sent, notify Lender in writing of any objection such Borrower may have thereto (stating with particularity the basis for such objection), such statement and accounting shall be deemed final, binding and conclusive upon such Borrower, absent manifest error. 1.11 Indemnity. Each Borrower and each other Credit Party executing this Agreement jointly and severally agree to indemnify and hold Lender and its 7 Affiliates, and their respective employees, attorneys and agents (each, an "Indemnified Person"), harmless from and against any and all suits, actions, proceedings, claims, damages, losses, liabilities and expenses of any kind or nature whatsoever (including attorneys' fees and disbursements and other costs of investigation or defense, including those incurred upon any appeal) that may be instituted or asserted against or incurred by any such Indemnified Person as the result of credit having been extended, suspended or terminated under this Agreement and the other Loan Documents or with respect to the execution, delivery, enforcement, performance and administration of, or in any other way arising out of or relating to, this Agreement and the other Loan Documents or any other documents or transactions contemplated by or referred to herein or therein and any actions or failures to act with respect to any of the foregoing, including any and all product liabilities, Environmental Liabilities, Taxes and legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Loan Documents (collectively, "Indemnified Liabilities"), except to the extent that any such Indemnified Liability is finally determined by a court of competent jurisdiction to have resulted solely from such Indemnified Person's gross negligence or willful misconduct. NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY CREDIT PARTY, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER. 1.12 Borrowing Base; Reserves. The Borrowing Base of each Borrower shall be determined by Lender (including the eligibility of Accounts and Inventory) based on the most recent Borrowing Base Certificate delivered to Lender in accordance with Section 4.1(b) and such other information available to Lender. The Revolving Credit Loan shall be subject to Lender's continuing right to withhold from any Borrower's Borrowing Availability reserves (including, without limitation, the Special Reserve), and to increase and decrease such reserves from time to time, if and to the extent that in Lender's good faith credit judgment such reserves are necessary, including to protect Lender's interest in the Collateral or to protect Lender against possible non-payment of Accounts for any reason by Account Debtors or possible diminution of the value of any Collateral or possible non-payment of any of the Obligations or for any Taxes or in respect of any state of facts that could constitute a Default. Lender may, at its option, in Lender's good faith credit judgment, implement reserves (including, without limitation, the Special Reserve) by designating as ineligible a sufficient amount of Accounts or Inventory that would otherwise be Eligible Accounts or Eligible Inventory, as the case may be, so as to reduce any Borrower's Borrowing Base by the amount of the intended reserves. 2. Conditions Precedent 2.1 Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by Lender, which conditions shall not survive the Closing unless specifically set forth in a post-closing obligations letter signed by Borrowers and Lender: (a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F); (b) all of the obligations of Borrowers to Wachovia Bank under their financing documentation as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans and all Liens upon any of the property of any Borrower or any other Credit Party in respect thereof shall have been terminated immediately upon such payment; (c) Lender shall have received evidence satisfactory to it that the insurance policies provided for in Section 3.16 are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender as required under such Section; (d) Lender shall have received an opinion(s) of counsel to the Borrowers and the Guarantors with respect to the Loan Documents in form and substance satisfactory to Lender; (e) as of the Closing Date, Net Borrowing Availability for all Borrowers combined shall be not less than $500,000 after giving effect to the 8 initial Revolving Credit Advance and Letter of Credit Obligations (on a pro forma basis, with trade payables and taxes no more than 60 days past due, and expenses and liabilities (other than the El Cajon Lease) being paid in the ordinary course of business and without acceleration of sales); provided, however, that the Stockholders of Marlton (or any one of them) may, in such Stockholder's sole discretion, make loans to the Borrowers (the "Closing Date Stockholder Loans") in order to achieve the above-referenced minimum Net Borrowing Availability; provided, further, in order for such loans to count towards such Net Borrowing Availability, each Stockholder who makes such a loan shall execute and deliver to Lender an Intercreditor and Subordination Agreement in favor of Lender in the form attached hereto as Exhibit K (each such Agreement shall contain the repayment provisions described in Section 3.22); (f) Lender shall have verified the Accounts of Borrowers, such verification to be in form and substance satisfactory to Lender; (g) payment by Borrowers of all fees, costs and expenses payable by Borrowers hereunder that have accrued as of the Closing Date; (h) Lender shall have completed its business and legal due diligence of Borrowers and their operations, including, but not limited to, pre-closing collateral audit, review of the significant customer contracts of each Borrower and background and reference checks on (i) Borrowers, (ii) their respective shareholders, officers and directors, (iii) each Guarantor and (iv) all other Credit Parties; (i) Lender shall have obtained and investigated references with respect to each Borrower's vendors in form and substance satisfactory to Lender in its sole discretion; and (j) Borrowers shall have complied, to the satisfaction of Lender, with all of the other terms and conditions set forth in that certain Commitment Letter dated October 31, 2003 (the "Commitment Letter"), from Lender to Borrowers, Marlton and Sparks Holding. 2.2 Further Conditions to the Loans. Lender shall not be obligated to fund any Loan (including the initial Loans), if, as of the date thereof: (a) any representation or warranty by any Credit Party contained herein or in any of the other Loan Documents shall be untrue or in any material respect incorrect as of such date, except to the extent that any such representation or warranty is expressly stated to relate to a specific earlier date, in which case, such representation and warranty shall be true and in all material respects correct as of such earlier date; or (b) any event or circumstance that has had or reasonably could be expected to have a Material Adverse Effect shall have occurred since the Closing Date; or (c) any Default shall have occurred and be continuing or would result after giving effect to such Loan; or (d) after giving effect to such Loan, the Revolving Credit Loan attributable to any Borrower would exceed the Borrowing Availability of such Borrower. 2.3 Agent. The request and acceptance by Leading Borrower, as agent for each Borrower, of the proceeds of any Loan, and the request by Leading Borrower, as agent for each Borrower, for the incurrence by Lender of any Letter of Credit Obligations, as the case may be, shall be deemed to constitute, as of the date of such request and the date of such acceptance, (i) a representation and warranty by each Borrower that the conditions in Section 2.2 have been satisfied and (ii) a restatement by each Borrower of each of the representations and warranties made by such Borrower in any Loan Document and a reaffirmation by each Borrower of the granting and continuance of Lender's Liens pursuant to the Loan Documents. 3. Representations, warranties and affirmative covenants To induce Lender to enter into this Agreement and to make the Loans, each Borrower and each other Credit Party executing this Agreement represent and 9 warrant to Lender (each of which representations and warranties shall survive the execution and delivery of this Agreement), and promise to and agree with Lender until the Termination Date as follows: 3.1 Corporate Existence; Compliance with Law. Each Corporate Credit Party: (a) is, as of the Closing Date, and will continue to be (i) a corporation, limited liability company or limited partnership, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, (ii) duly qualified to do business and in good standing in each other jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, and (iii) in compliance with all Requirements of Law and Contractual Obligations, except to the extent failure to comply therewith could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (b) has and will continue to have (i) the requisite corporate power and authority and the legal right to execute, deliver and perform its obligations under the Loan Documents, and to own, pledge, mortgage or otherwise encumber and operate its properties, to lease the property it operates under lease, and to conduct its business as now, heretofore or proposed to be conducted, and (ii) all licenses, permits, franchises, rights, powers, consents or approvals from or by all Persons or Governmental Authorities having jurisdiction over such Corporate Credit Party that are necessary or appropriate for the conduct of its business, except to the extent the failure to obtain such license, permit, franchise, right, power, consent or approval could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Notwithstanding any other representation or warranty providing a lesser or greater standard, there is no provision of any Corporate Credit Party's articles or certificate of incorporation or other creating instrument or by-laws or operating agreement limiting or contravening the Resolutions attached as Attachment 5 to such Credit Party's Secretarial Certificate. 3.2 Executive Offices; Corporate or Other Names. (a) Each Corporate Credit Party's name as it appears in official filings in the state of its incorporation or organization, (b) the type of entity of each Corporate Credit Party, (c) the organizational identification number issued by each such Credit Party's state of incorporation or organization or a statement that no such number has been issued, (d) each Corporate Credit Party's state of organization or incorporation, and (e) the location of each Corporate Credit Party's chief executive office, corporate offices, warehouses, other locations of Collateral and locations where records with respect to Collateral are kept (including in each case the county of such locations) are as set forth in Disclosure Schedule (3.2) and, except as set forth in such Disclosure Schedule, such locations have not changed during the preceding twelve months. As of the Closing Date, during the prior five years, except as set forth in Disclosure Schedule (3.2), no Corporate Credit Party has been known as or conducted business in any other name (including trade names). Each Corporate Credit Party has only one state of incorporation or organization. 3.3 Corporate Power; Authorization; Enforceable Obligations. The execution, delivery and performance by each Credit Party of the Loan Documents to which it is a party, and the creation of all Liens provided for herein and therein: (a) are and will continue to be within such Credit Party's power and authority; (b) have been and will continue to be duly authorized by all necessary or proper action; (c) are not and will not be in violation of any Requirement of Law or material Contractual Obligation of such Credit Party; (d) do not and will not result in the creation or imposition of any Lien (other than Permitted Encumbrances) upon any of the Collateral; and (e) do not and will not require the consent or approval of any Governmental Authority or any other Person. As of the Closing Date, each Loan Document shall have been duly executed and delivered on behalf of each Credit Party signatory thereto, and each such Loan Document upon such execution and delivery shall be and will continue to be a legal, valid and binding obligation of such Credit Party, enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency and other similar laws affecting creditors' rights generally and the application of equitable principles. 3.4 Financial Statements and Projections; Books and Records. (a) The Financial Statements delivered by Marlton and its Subsidiaries to Lender for its most recently ended Fiscal Year and Fiscal Month, are true, correct and complete and reflect fairly and accurately the financial condition of Marlton and its Subsidiaries as of the date of each such Financial Statement in accordance with GAAP (consolidated portions only). The Projections most recently delivered by Marlton and its Subsidiaries to Lender have been prepared in good faith, with care and diligence and use assumptions that are reasonable under the circumstances at the time such Projections were prepared and as of the date delivered to Lender, and all such material assumptions are disclosed in the Projections. 10 (b) Each Borrower and each other Corporate Credit Party shall keep adequate Books and Records with respect to the Collateral and its business activities in which proper entries, reflecting all consolidated and consolidating financial transactions, and payments and credits received on, and all other dealings with, the Collateral, will be made in accordance with GAAP and all Requirements of Law and on a basis consistent with the Financial Statements. 3.5 Material Adverse Change. Between the date of Marlton and its Subsidiaries' (on a consolidated basis) most recently audited Financial Statements delivered to Lender and the Closing Date: (a) no Corporate Credit Party has incurred any obligations, contingent or non-contingent liabilities, or liabilities for Charges, long-term leases or unusual forward or long-term commitments that are not reflected in the Projections delivered on the Closing Date and which could, alone or in the aggregate, reasonably be expected to have a Material Adverse Effect; (b) there has been no material deviation from such Projections; and (c) no events have occurred that alone or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect. No Requirement of Law or Contractual Obligation of any Credit Party has or have had or could reasonably be expected to have a Material Adverse Effect. No Credit Party is in default, and to such Credit Party's knowledge no third party is in default, under or with respect to any of its Contractual Obligations, that alone or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect. 3.6 Real Estate; Property. The real estate listed in Disclosure Schedule (3.6) constitutes all of the real property owned, leased, or used by each Corporate Credit Party in its business, and such Credit Party will not execute any material agreement or contract in respect of such real estate after the date of this Agreement without giving Lender prompt prior written notice thereof. Each Corporate Credit Party holds and will continue to hold good and marketable fee simple title to all of its owned real estate, and good and marketable title to all of its other properties and assets, and valid and insurable leasehold interests in all of its leases (both as lessor and lessee, sublessee or assignee), and none of the properties and assets of any Corporate Credit Party are or will be subject to any Liens, except Permitted Encumbrances. With respect to the Philadelphia, Pennsylvania, Austell, Georgia and Santa Fe, California premises identified in Disclosure Schedule (3.2), on or prior to the Closing Date a bailee, landlord or mortgagee agreement acceptable to Lender has been obtained. The Borrowers will, before March 1, 2004, obtain and deliver to Lender a bailee agreement acceptable to Lender with respect to the warehouse located at 12234 Florence Avenue, Los Angeles, California, unless the Borrowers have vacated such warehouse on or before February 29, 2004. 3.7 Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness. Except as set forth in Disclosure Schedule (3.7), as of the Closing Date no Corporate Credit Party has any Subsidiaries, is engaged in any joint venture or partnership with any other Person, or is an Affiliate of any other Person. All of the issued and outstanding Stock of each Corporate Credit Party (including all rights to purchase, options, warrants or similar rights or agreements pursuant to which any Corporate Credit Party may be required to issue, sell, repurchase or redeem any of its Stock) as of the Closing Date is owned by each of the Stockholders (and in the amounts) set forth in Disclosure Schedule (3.7); provided, however, that with respect to Marlton, such Disclosure Schedule will only list the shares owned by Jeffrey Harrow, Scott Tarte, Robert Ginsburg and Alan Goldberg. All outstanding Indebtedness of each Corporate Credit Party as of the Closing Date is described in Disclosure Schedule (5(b)). 3.8 Government Regulation; Margin Regulations. No Corporate Credit Party is subject to or regulated under any Federal or state statute, rule or regulation that restricts or limits such Person's ability to incur Indebtedness, pledge its assets, or to perform its obligations under the Loan Documents. The making of the Loans, the application of the proceeds and repayment thereof, and the consummation of the transactions contemplated by the Loan Documents do not and will not violate any Requirement of Law applicable to a Corporate Credit Party. No Corporate Credit Party is engaged, nor will it engage in the business of extending credit for the purpose of "purchasing" or "carrying" any "margin security" as such terms are defined in Regulation U of the Federal Reserve Board as now and hereafter in effect (such securities being referred to herein as "Margin Stock"). No Corporate Credit Party owns any Margin Stock, and none of the proceeds of the Loans or other extensions of credit under this Agreement will be used, directly or indirectly, for the purpose of purchasing or carrying any Margin Stock or reducing or retiring any Indebtedness that was originally incurred to purchase or carry any Margin Stock. No Corporate Credit Party will take or permit to be taken any action that might cause any Loan Document to violate any regulation of the Federal Reserve Board. 11 3.9 Taxes; Charges. Except as disclosed in Disclosure Schedule (3.9) all tax returns, reports and statements required by any Governmental Authority to be filed by Borrower or any other Credit Party have, as of the Closing Date, been filed and will, until the Termination Date, be filed with the appropriate Governmental Authority and no tax Lien has been filed against any Credit Party or any Credit Party's property. Proper and accurate amounts have been and will be withheld by Borrower and each other Credit Party from their respective employees for all periods in compliance with all Requirements of Law and such withholdings have and will be timely paid to the appropriate Governmental Authorities. Disclosure Schedule (3.9) sets forth as of the Closing Date those taxable years for which any Credit Party's tax returns are currently being audited by the IRS or any other applicable Governmental Authority and any assessments or threatened assessments in connection with such audit, or otherwise currently outstanding. Except as described on Disclosure Schedule (3.9), none of the Credit Parties or their respective predecessors are liable for any Charges in excess of $10,000 in the aggregate at any time: (a) under any agreement (including any tax sharing agreements or agreement extending the period of assessment of any Charges) or (b) to each Credit Party's knowledge, as a transferee. As of the Closing Date, no Credit Party has agreed or been requested to make any adjustment under IRC Section 481(a), by reason of a change in accounting method or otherwise, which could reasonably be expected to have a Material Adverse Effect. 3.10 Payment of Obligations. Each Credit Party will pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of its Charges and other obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of such Credit Party or such Charges are not in excess of $10,000 in the aggregate at any time, and none of the Collateral is or could reasonably be expected to become subject to any Lien or forfeiture or loss as a result of such contest. 3.11 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other existing ERISA Events, could reasonably be expected to result in a liability of any Credit Party of more than the Minimum Actionable Amount. Except as disclosed in Disclosure Schedule (3.11), the present value of all accumulated benefit obligations of the Credit Parties under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent Financial Statements reflecting such amounts, exceed the fair market value of the assets of such Plan by more than the Minimum Actionable Amount, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Account Standards No. 87) did not, as of the date of the most recent Financial Statements reflecting such amounts, exceed the fair market value of the assets of such underfunded Plans by more than the Minimum Actionable Amount. No Credit Party or ERISA Affiliate has incurred or reasonably expects to incur any Withdrawal Liability in excess of the Minimum Actionable Amount. 3.12 Litigation. No Litigation is pending or, to the knowledge of any Credit Party, threatened by or against any Credit Party or against any Credit Party's properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Effect. Except as set forth in Disclosure Schedule (3.12), as of the Closing Date there is no Litigation pending or threatened against any Credit Party that seeks damages in excess of $50,000 or injunctive relief or alleges criminal misconduct of any Credit Party. Each Credit Party shall notify Lender promptly in writing upon learning of the existence, threat or commencement of any Litigation (i) that seeks damages in excess of $50,000 or injunctive relief against any Credit Party, ERISA Affiliate or any Plan, or (ii) that alleges any criminal misconduct against any Credit Party. 3.13 Intellectual Property. As of the Closing Date, all material Intellectual Property owned or used by any Corporate Credit Party is listed, together with application or registration numbers, where applicable, in Disclosure Schedule (3.13). Each Corporate Credit Party owns, or is licensed to use, all Intellectual Property necessary to conduct its business as currently conducted except for such Intellectual Property the failure of which to own or license could not reasonably be expected to have a Material Adverse Effect. Each Corporate Credit Party will maintain the patenting and registration of all Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or other appropriate Governmental Authority and each Corporate Credit Party will promptly patent or register, as the case may be, all new Intellectual Property material to the business of such Corporate Credit Party and notify Lender in writing five (5) Business Days prior to filing any such new patent or registration. 12 3.14 Full Disclosure. No information contained in any Loan Document, the Financial Statements or any written statement furnished by or on behalf of any Credit Party under any Loan Document, or to induce Lender to execute the Loan Documents, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. 3.15 Hazardous Materials. Except as set forth in Disclosure Schedule (3.15), as of the Closing Date, (a) each real property location owned, leased or occupied by each Corporate Credit Party (the "Real Property") is maintained free of contamination from any Hazardous Material, (b) no Corporate Credit Party is subject to any Environmental Liabilities or, to any Credit Party's knowledge, potential Environmental Liabilities, in excess of the Minimum Actionable Amount in the aggregate, (c) no notice has been received by any Corporate Credit Party identifying it as a "potentially responsible party" or requesting information under CERCLA or analogous state statutes, and to the knowledge of any Credit Party, there are no facts, circumstances or conditions that may result in any Corporate Credit Party being identified as a "potentially responsible party" under CERCLA or analogous state statutes; and (d) each Corporate Credit Party has provided to Lender copies of all existing environmental reports, reviews and audits and all written information pertaining to actual or potential Environmental Liabilities, in each case relating to any Corporate Credit Party. Each Corporate Credit Party: (i) shall comply in all material respects with all applicable Environmental Laws and environmental permits; (ii) shall notify Lender in writing within seven (7) days if and when it becomes aware of any Release, on, at, in, under, above, to, from or about any of its Real Property; and (iii) shall promptly forward to Lender a copy of any order, notice, permit, application, or any communication or report received by it or any other Credit Party in connection with any such Release. 3.16 Insurance. As of the Closing Date, Disclosure Schedule (3.16) lists all insurance of any nature maintained for current occurrences by Borrowers and each other Corporate Credit Party, as well as a summary of the terms of such insurance. Each Corporate Credit Party shall deliver to Lender certified copies and endorsements to all of its and those of its Subsidiaries (a) "All Risk" and business interruption insurance policies naming Lender loss payee, and (b) general liability and other liability policies naming Lender as an additional insured. All policies of insurance on real and personal property will contain an endorsement, in form and substance acceptable to Lender, showing loss payable to Lender (Form 438 BFU or equivalent) and extra expense and business interruption endorsements. Such endorsement, or an independent instrument furnished to Lender, will provide that the insurance companies will give Lender at least thirty (30) days prior written notice before any such policy or policies of insurance shall be altered or canceled and that no act or default of any Borrower or any other Person shall affect the right of Lender to recover under such policy or policies of insurance in case of loss or damage. Each Corporate Credit Party shall direct all present and future insurers under its "All Risk" policies of insurance to pay all proceeds payable thereunder directly to Lender. If any insurance proceeds are paid by check, draft or other instrument payable to any Credit Party and Lender jointly, Lender may endorse such Credit Party's name thereon and do such other things as Lender may deem advisable to reduce the same to cash. Lender reserves the right at any time in its reasonable discretion, upon review of each Credit Party's risk profile, to require additional forms and limits of insurance. Each Corporate Credit Party shall, (i) on each anniversary of the Closing Date and from time to time at Lender's request, deliver to Lender copies of its insurance policies and endorsements and certificates of insurance certified by an authorized officer of such Corporate Credit Party, all in compliance with the provisions set forth above, and (ii) at Lender's request, but not more frequently than annually, a report by a reputable insurance broker, reasonably satisfactory to Lender, with respect to such Person's insurance policies. 3.17 Deposit and Disbursement Accounts. Attachment I to Schedule D lists all banks and other financial institutions at which any Borrower or any other Corporate Credit Party, maintains deposits and/or other accounts, including the Disbursement Accounts, and such Attachment correctly identifies the name, address and telephone number of each such depository, the name in which the account is held, a description of the purpose of the account, and the complete account number. 3.18 Accounts and Inventory. As of the date of each Borrowing Base Certificate delivered to Lender, each Account listed thereon as an Eligible Account shall be an Eligible Account and all Inventory listed thereon as Eligible Inventory shall be Eligible Inventory. No Borrower has made, nor will any Borrower make, any 13 agreement with any Account Debtor for any extension of time for the payment of any Account, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance for (a) prompt or early payment allowed by Borrowers in the ordinary course of their business consistent with historical practice and as previously disclosed to Lender, (b) nonconforming goods or services in the ordinary course of their business consistent with historical practice, and (c) returned goods in the ordinary course of their business consistent with historical practice not to exceed $250,000 in the aggregate in any Fiscal Month and $500,000 in the aggregate in any Fiscal Year; provided, however, that Borrowers shall disclose to Lender any such discount or allowance at the earlier of (i) two (2) Business Days after issuance thereof, or (ii) in the next Notice of Revolving Credit Advance delivered to Lender after issuance thereof. Disclosure Schedule (3.18) sets forth each Contract of any Borrower with any Account Debtor that gives such Account Debtor the right (under such Contract, under common law or otherwise) to offset any Accounts for such Borrower's failure to perform under such Contract and each Borrower has obtained an offset waiver for each such contract in form and substance satisfactory to Lender. With respect to the Accounts pledged as collateral pursuant to any Loan Document (a) the amounts shown on all invoices, statements and reports that may be delivered to the Lender with respect thereto are actually and absolutely owing to the relevant Credit Party as indicated thereon and are not in any way contingent; (b) no payments have been or shall be made thereon except payments immediately delivered to the applicable accounts described in paragraph 1 to Schedule D or the Lender as required hereunder; and (c) to each Borrower's knowledge all Account Debtors have the capacity to contract. Each Borrower shall notify Lender promptly of any event or circumstance that to such Borrower's knowledge would cause Lender to consider any then existing Account or Inventory as no longer constituting an Eligible Account or Eligible Inventory, as the case may be. 3.19 Conduct of Business. Each Corporate Credit Party (a) shall conduct its business substantially as now conducted or as otherwise permitted hereunder, and (b) shall at all times maintain, preserve and protect all of the Collateral and such Credit Party's other property, used or useful in the conduct of its business and keep the same in good repair, working order and condition and make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto consistent with industry practices. 3.20 Further Assurances. At any time and from time to time, upon the written request of Lender and at the sole expense of Borrowers, Borrowers and each other Credit Party shall promptly and duly execute and deliver any and all such further instruments and documents and take such further action as Lender may reasonably deem desirable (a) to obtain the full benefits of this Agreement and the other Loan Documents, (b) to protect, preserve and maintain Lender's rights in any Collateral, or (c) to enable Lender to exercise all or any of the rights and powers herein granted. 3.21 Solvency. Each Borrower is Solvent both before and after giving effect to (a) the Loans and Letter of Credit Obligations to be made or extended on the Closing Date or such other date as Loans and Letter of Credit Obligations requested hereunder are made or extended, (b) the disbursement of the proceeds of such Loans pursuant to the instructions of the Leading Borrower, and (c) the payment and accrual of all transaction costs in connection with the foregoing. 3.22 Stockholder Loans. In the event that the Borrowers have Net Borrowing Availability on a combined basis of zero or less at the end of any month between the Closing Date and March 31, 2004, the Stockholders of Marlton (or any one of them) shall make a loan to the Borrowers (the "Additional Stockholder Loans") in an amount equal to the amount necessary to increase Borrowers' Net Borrowing Availability on a combined basis to at least $200,000, and such Stockholders shall execute and deliver to Lender an Intercreditor and Subordination Agreement in favor of Lender in the form attached hereto as Exhibit K; provided, however, that the aggregate amount of the Closing Date Stockholders Loans and the Additional Stockholder Loans (collectively, the "Stockholders Loans") shall not exceed $500,000; provided, further, that the Borrowers may repay the Stockholders Loans at the end of any Fiscal Quarter so long as and to the extent that (a) no Event of Default has occurred and is continuing, or would occur as a result of any such payment, and (b) after giving effect to any such payment, Borrowers' Net Borrowing Availability on a combined basis is greater than $500,000. For purposes of this Section 3.22, Net Borrowing Availability shall be calculated on a pro forma basis, with trade payables and taxes no more than 60 days past due, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales. The provisions of this Section 3.22 do not in any way limit the obligations of each Borrower to immediately repay an overadvance pursuant to Section 1.2(b). Notwithstanding anything contained herein to the contrary, this Section 3.22 shall be null and void in the event that Net Borrowing Availability for all Borrowers as of the Closing Date (calculated in accordance with Section 2.1(e)) is greater than $700,000. 14 3.23 Vendor Searches. Lender will conduct, at the sole cost and expense of Borrowers, UCC searches against Borrowers' vendors. So long as no Event of Default has occurred, Lender will conduct such searches not more often than semi-annually, and will limit the scope of such searches to those vendors which store Borrowers' Inventory consisting of finished goods with an aggregate value (on a first-in, first-out basis at the lower of cost or market) in excess of $350,000. After the occurrence and during the continuance of an Event of Default, Lender will conduct such searches as frequently as it deems necessary, and may search all vendors without regard to the value of finished goods stored by such vendors. Borrowers will also use its reasonable commercial efforts to ascertain if any vendor has added a lender or changed its existing lender, and if it ascertains such an addition and/or change has or will occur, Borrowers will immediately notify Lender of same. 4. FINANCIAL MATTERS; REPORTS 4.1 Reports and Notices. From the Closing Date until the Termination Date, each Borrower shall deliver to Lender: (a) within fifteen (15) days following the end of each Fiscal Month, an aged trial balance by Account Debtor and an Inventory perpetual or physical (as requested by Lender) and as soon as available but in no event later than 30 days following the end of each Fiscal Month, a reconciliation of the aged trial balance and the Inventory perpetual or physical (as the case may be) to such Borrower's general ledger and from the general ledger to the Financial Statements for such Fiscal Month accompanied by supporting detail and documentation as Lender may request; (b) as frequently as Lender may request and in any event no later than fifteen (15) days following the end of each Fiscal Month, a Borrowing Base Certificate in the form of Exhibit C as of the last day of the previous Fiscal Month detailing ineligible Accounts and Inventory for adjustment to the Borrowing Base, certified as true and correct by the Chief Financial Officer of such Borrower or such other officer as is acceptable to Lender; (c) within fifteen (15) days following the end of each Fiscal Month, an Accounts Payable Analysis in the Form of Exhibit D (together with an accounts payable aging) and an Accounts Receivable Roll Forward Analysis in the Form of Exhibit E, each certified as true and correct by the Chief Financial Officer of such Borrower or such other officer as is acceptable to Lender; (d) within thirty (30) days following the end of each Fiscal Month (subject to a 15-day extension for the last Fiscal Month of each Fiscal Quarter if Marlton files a Form 12b-25 with the SEC and simultaneously therewith delivers a copy of such extension request to Lender), the Financial Statements for such Fiscal Month, which shall provide comparisons to budget and actual results for the corresponding period during the prior Fiscal Year, both on a monthly and year-to-date basis, and accompanied by a certification in the form of Exhibit J by the Chief Executive Officer or Chief Financial Officer of such Borrower (i) that such Financial Statements are complete and correct, subject only to accountant-recommended adjustments for the Fiscal Months in a particular Fiscal Quarter, as reported within forty five (45) days after the end of such Fiscal Quarter, except with respect to the last Fiscal Quarter of the Fiscal Year, which shall be reported within ninety (90) days after the end of such Fiscal Quarter, (ii) that there was no Default (or specifying those Defaults of which he or she was aware), and (iii) showing in reasonable detail the calculations used in determining compliance with the financial covenants hereunder; (e) within ninety (90) days following the close of each Fiscal Year (subject to a 15-day extension if Marlton files a Form 12b-25 with the SEC and simultaneously therewith delivers a copy of such extension request to Lender), the Financial Statements for such Fiscal Year certified without qualification by an independent certified accounting firm reasonably acceptable to Lender (Lender acknowledges that McGlandrey & Pullen, LLC is acceptable to it as of the Closing Date), which shall provide comparisons to the prior Fiscal Year, and shall be accompanied by (i) a statement of Borrowers in reasonable detail showing the calculations used in determining compliance with the financial covenants hereunder, (ii) a report from such Borrower's accountants to the effect that in connection with their audit examination nothing has come to their attention to cause them to believe that a Default has occurred or specifying those Defaults of which they are aware, and (iii) any management letter that may be issued; 15 (f) not less than thirty (30) days prior to the close of each Fiscal Year, the Projections, which will be prepared by such Borrower in good faith, with care and diligence, and using assumptions that are reasonable under the circumstances at the time such Projections are delivered to Lender and disclosed therein when delivered; (g) all the reports and other information set forth in Exhibit B in the time frames set forth therein; (h) tax returns of each Guarantor filed with the Internal Revenue Service ("IRS"), together with all schedules thereto, within ten (10) days after the date on which the same are filed with the IRS each year. If Guarantor applies for an extension of time to file the tax return, a copy of such extension request, as filed with the IRS shall be delivered to Lender within ten (10) days after the date on which the same is filed; and (i) promptly upon their becoming available to the Borrowers, the Borrowers shall deliver to Lender a copy of (a) all regular or special reports (including those on Form 10-K and Form 10-Q) or effective registration statements which Marlton or any Borrower shall file with the Securities and Exchange Commission (or any successor thereto) or any securities exchange, (b) all reports, proxy statements, financial statements, management letters and other information distributed by Marlton to its shareholders or the financial community in general, and (c) any reports submitted to Marlton or any Borrower by independent accountants in connection with any annual, interim or special audit. 4.2 Financial Covenants. Marlton and its Subsidiaries shall not breach any of the financial covenants set forth in Schedule G. For purposes of Section 7.1, a breach of a financial covenant set forth in Schedule G shall be deemed to have occurred as of any date of determination by Lender or as of the last day of any specified measurement period, regardless of when the Financial Statements reflecting such breach are delivered to Lender. 4.3 Other Reports and Information. Each Borrower shall advise Lender promptly, in reasonable detail, of: (a) any Lien, other than Permitted Encumbrances, attaching to or asserted against any of the Collateral or any occurrence causing a material loss or decline in value of any Collateral and the estimated (or actual, if available) amount of such loss or decline; (b) any material change in the composition of the Collateral; and (c) the occurrence of any Default or other event that has had or could reasonably be expected to have a Material Adverse Effect. Each Borrower shall, upon request of Lender, furnish to Lender such other reports and information in connection with the affairs, business, financial condition, operations, prospects or management of such Borrower or any other Credit Party or the Collateral as Lender may reasonably request, all in reasonable detail. 5. NEGATIVE COVENANTS Each Borrower and each Credit Party executing this Agreement covenants and agrees (for itself and each other Credit Party) that, without Lender's prior written consent, from the Closing Date until the Termination Date, neither any Borrower nor any other Corporate Credit Party shall, directly or indirectly, by operation of law or otherwise: (a) form any Subsidiary or merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or make any investment in excess of the Minimum Actionable Amount in or, except as provided in Section 5(c) below, loan or advance to, any Person; (b) cancel any debt owing to it (other than as permitted under Section 3.18) or create, incur, assume or permit to exist any Indebtedness, except: (i) the Obligations, (ii) Indebtedness existing as of the Closing Date set forth in Disclosure Schedule 5(b), (iii) deferred taxes, (iv) by endorsement of Instruments or items of payment for deposit to the general account of such Credit Party, (v) for Guaranteed Indebtedness incurred for the benefit of Borrower if the primary obligation is permitted by this Agreement; (vi) additional Indebtedness (including Purchase Money Indebtedness) incurred after the Closing Date in an aggregate outstanding amount for all such Corporate Credit Parties combined not exceeding $500,000 at any time, and (vii) 16 Indebtedness consisting of intercompany loans and advances made by any Borrower to any other Borrower and SEEI and SEEC, provided that (A) each Borrower, SEEI and SEEC shall have executed and delivered to each other Borrower, on the Closing Date, a demand note (collectively, the "Intercompany Notes") to evidence any such intercompany Indebtedness owing at any time by such Borrower, SEEI and SEEC to the other Borrowers, which Intercompany Notes shall be in form and substance satisfactory to Lender; (B) each Borrower and SEEI and SEEC shall record all intercompany transactions on its books and records in a manner satisfactory to Lender; (C) the obligations of each Borrower under any such Intercompany Notes shall be subordinated to the Obligations of such Borrower hereunder in a manner satisfactory to Lender; (D) at the time any such intercompany loan or advance is made by any Borrower to any other Borrower, SEEI or SEEC and after giving effect thereto, each such Borrower shall be Solvent; (E) no Default or Event of Default would occur and be continuing after giving effect to any such proposed intercompany loan; (F) the Borrower advancing such funds shall have Net Borrowing Availability under its separate Borrowing Base of not less than $150,000 after giving effect to such intercompany loan, (G) no Borrower shall make loans and advances to any one or more of the Borrowers, SEEI and SEEC such that the outstanding amount thereof to such Persons exceeds $500,000 in the aggregate, and (H) no Borrower shall owe in excess of $500,000 in the aggregate to any one or more of Borrowers and neither SEEI nor SEEC shall owe in excess of $50,000 in the aggregate to any Borrowers in the aggregate; (c) enter into any lending, borrowing or other commercial transaction with any of its employees, directors, Affiliates or any other Credit Party (including upstreaming and downstreaming of cash and intercompany advances and payments by a Credit Party on behalf of another Credit Party that are not otherwise permitted hereunder) other than (i) loans or advances (A) to employees in the ordinary course of business in an aggregate outstanding amount not exceeding $50,000, and (B) consisting of Stockholder Loans, or (ii) issuance of shares of capital stock and options to purchase capital stock of Marlton; (d) make any changes in any of its business objectives, purposes, or operations that could reasonably be expected to adversely affect repayment of the Obligations or could reasonably be expected to have a Material Adverse Effect or engage in any business other than that presently engaged in or proposed to be engaged in the Projections delivered to Lender on the Closing Date or amend its charter or by-laws or other organizational documents, if such amendment could reasonably be expected to have an adverse effect on Lender's interests, rights and/or remedies; (e) create or permit any Lien on any of its properties or assets, except for Permitted Encumbrances; (f) sell, transfer, issue, convey, assign or otherwise dispose of any of its assets or properties, including its Accounts or any shares of its Stock (other than shares or options to purchase shares of Marlton's Stock) or engage in any sale-leaseback, synthetic lease or similar transaction (provided, that the foregoing shall not prohibit the sale of Inventory or obsolete or unnecessary Equipment in the ordinary course of its business); (g) change (i) its name as it appears in official filings in the state of its incorporation or organization, (ii) its chief executive office, corporate offices, warehouses or other Collateral locations, or location of its records concerning the Collateral, (iii) the type of legal entity that it is, (iv) its organization identification number, if any, issued by its state of incorporation or organization, or (v) its state of incorporation or organization, or acquire, lease or use any real estate after the Closing Date; without such Person, in each instance, giving thirty (30) days prior written notice thereof to Lender and taking all actions deemed necessary or appropriate by Lender to continuously protect and perfect Lender's Liens upon the Collateral; (h) establish any depository or other bank account of any kind with any financial institution (other than the accounts set forth in Attachment 1 to Schedule D) without Lender's prior written consent; provided, however, that with respect to any such account established and maintained in an amount less than $2,500, Lender's consent shall not be unreasonably withheld or delayed; or (i) make or permit any Restricted Payment; provided, however, that each Borrower shall be entitled to make monthly distributions to Sparks Holding and/or Marlton for general administrative expenses consistent with its historical practices in a monthly amount not to exceed $250,000 in the aggregate for all Borrowers, so long as and to the extent that at the time of and after giving effect to such distribution, the Borrower making such distribution has positive Net Borrowing Availability under its separate Borrowing Base. For purposes of this Section 5(i), Net Borrowing Availability shall be calculated on a pro forma basis, with trade payables not more than 60 days past due, taxes being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales. 6. SECURITY INTEREST 17 6.1 Grant of Security Interest. (a) As collateral security for the prompt and complete payment and performance of the Obligations, each of the Borrowers and each other Credit Party executing this Agreement hereby grants to the Lender a security interest in and Lien upon all of its property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest, including all of the following property in which it now has or at any time in the future may acquire any right, title or interest: all Accounts; all Deposit Accounts, all other bank accounts and all funds on deposit therein; all money, cash and cash equivalents; all Investment Property; all Stock; all Goods (including Inventory, Equipment and Fixtures); all Chattel Paper, Documents and Instruments; all Books and Records; all General Intangibles (including all Intellectual Property, contract rights, choses in action, Payment Intangibles and Software); all letters of credit and Letter-of-Credit Rights; all Supporting Obligations; and to the extent not otherwise included, all Proceeds, tort claims, insurance claims and other rights to payment not otherwise included in the foregoing and products of all and any of the foregoing and all accessions to, substitutions and replacements for, and rents and profits of, each of the foregoing, but excluding in all events Hazardous Waste (all of the foregoing, together with any other collateral pledged to the Lender pursuant to any other Loan Document, collectively, the "Collateral"). (b) Each Borrower, Lender and each other Credit Party executing this Agreement agree that this Agreement creates, and is intended to create, valid and continuing Liens upon the Collateral in favor of Lender. Each Borrower and each other Credit Party executing this Agreement represents, warrants and promises to Lender that: (i) each Borrower and each other Credit Party granting a Lien in Collateral has rights in and the power to transfer each item of the Collateral upon which it purports to grant a Lien pursuant to the Loan Documents, free and clear of any and all Liens or claims of others, other than Permitted Encumbrances; (ii) the security interests granted pursuant to this Agreement, upon completion of the filings and other actions listed on Disclosure Schedule 6.1 (which, in the case of all filings and other documents referred to in said Schedule, have been delivered to the Lender in duly executed or authorized form) will constitute valid perfected security interests in all of the Collateral in favor of the Lender as security for the prompt and complete payment and performance of the Obligations, enforceable in accordance with the terms hereof against any and all creditors of and purchasers from any Credit Party (other than purchasers of Inventory in the ordinary course of business) and such security interests are prior to all other Liens on the Collateral in existence on the date hereof except for Permitted Encumbrances that have priority by operation of law; and (iii) no effective security agreement, mortgage, deed of trust, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is or will be on file or of record in any public office, except those relating to Permitted Encumbrances. Each Borrower and each other Credit Party executing this Agreement promise to defend the right, title and interest of Lender in and to the Collateral against the claims and demands of all Persons whomsoever, and each shall take such actions, including (A) all actions necessary to grant Lender "control" of any Investment Property, Deposit Accounts, Letter-of-Credit Rights or electronic Chattel Paper owned by such Credit Party, with any agreements establishing control to be in form and substance satisfactory to Lender, (B) the prompt delivery of all original Instruments, Chattel Paper and certificated Stock owned by such Borrower and each other Credit Party granting a Lien on Collateral to Lender, (C) notification of Lender's interest in Collateral at Lender's request, and (D) the institution of litigation against third parties as shall be prudent in order to protect and preserve each Credit Party's and Lender's respective and several interests in the Collateral. Each Borrower (and any other Credit Party granting a Lien in Collateral) shall mark its Books and Records pertaining to the Collateral to evidence the Loan Documents and the Liens granted under the Loan Documents. If any Credit Party retains possession of any Chattel Paper or Instrument with Lender's consent, such Chattel Paper and Instruments shall be marked with the following legend: "This writing and the obligations evidenced or secured hereby are subject to the security interest of General Electric Capital Corporation." Each Credit Party executing this Agreement shall promptly, and in any event within two (2) Business Days after the same is acquired by it, notify Lender of any commercial tort claim (as defined in the Code) acquired by it and unless otherwise consented by Lender, such Credit Party shall enter into a supplement to this Loan Agreement granting to Lender a Lien in such commercial tort claim. 6.2 Lender's Rights. (a) Lender may, (i) at any time in Lender's own name or in the name of any Borrower, communicate with Account Debtors, parties to Contracts, and obligors in respect of Instruments, Chattel Paper or other Collateral to verify to Lender's satisfaction, the existence, amount and terms of, and any other matter relating to, Accounts, Payment Intangibles, Instruments, Chattel Paper or other Collateral, and (ii) at any time after a 18 Default has occurred and is continuing and without prior notice to any Borrower or any other Credit Party, notify Account Debtors and other Persons obligated on any Collateral that Lender has a security interest therein and that payments shall be made directly to Lender. Upon the request of Lender, each Borrower shall so notify such Account Debtors and other Persons obligated on any Collateral. Once any such notice has been given to any Account Debtor or other Person obligated on any Collateral, the affected Credit Party shall not give any contrary instructions to such Account Debtor or such other Person without Lender's prior written consent. Each Borrower hereby constitutes Lender or Lender's designee as such Borrower's attorney with power to endorse such Borrower's name upon any notes, acceptance drafts, money orders or other evidences of payment or Collateral. So long as no Event of Default has occurred and is continuing, Lender will use reasonable efforts to notify Leading Borrower twenty four (24) hours in advance of communicating with Accounts Debtors in connection with clause (a)(i) above; provided, however, that Lender's failure to provide such notice in advance or at all shall not be deemed a breach by Lender of any obligation to any Credit Party, and no Credit Party shall have a claim, cause of action or remedy as a result thereof. (b) Each Borrower shall remain liable under each Contract, Instrument and License to observe and perform all the conditions and obligations to be observed and performed by it thereunder, and Lender shall have no obligation or liability whatsoever to any Person under any Contract, Instrument or License (between any Borrower or any other Credit Party and any Person other than Lender) by reason of or arising out of the execution, delivery or performance of this Agreement, and Lender shall not be required or obligated in any manner (i) to perform or fulfill any of the obligations of any Borrower, (ii) to make any payment or inquiry, or (iii) to take any action of any kind to collect, compromise or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times under or pursuant to any Contract, Instrument or License. (c) Each Borrower and each other Credit Party shall, with respect to each owned, leased, or controlled property, during normal business hours and upon reasonable advance notice (unless a Default shall have occurred and be continuing, in which event no notice shall be required and Lender shall have access at any and all times): (i) provide access to such property to Lender and any of its officers, employees and agents, as frequently as Lender determines to be appropriate; (ii) permit Lender and any of its officers, employees and agents to inspect, audit and make extracts and copies (or take originals if reasonably necessary) from all of such Borrower's and such Credit Party's Books and Records; and (iii) permit Lender to inspect, review, evaluate and make physical verifications and appraisals of the Inventory and other Collateral in any manner and through any medium that Lender considers reasonably advisable, and each Borrower and such Credit Party agree to render to Lender, at such Borrower's and such Credit Party's cost and expense, such clerical and other assistance as may be reasonably requested with regard thereto. (d) After the occurrence and during the continuance of a Default, each Borrower at its own expense, shall cause the independent certified public accountant then engaged by such Borrower to prepare and deliver to Lender at any time and from time to time, promptly upon Lender's request, the following reports: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) test verifications of such Accounts as Lender may request. Each Borrower, at its own expense, shall cause its certified independent public accountants to deliver to Lender the results of any physical verifications of all or any portion of the Inventory made or observed by such accountants when and if such verification is conducted. Lender shall be permitted to observe and consult with each Borrower's accountants in the performance of these tasks. 6.3 Lender's Appointment as Attorney-in-Fact. On the Closing Date, each Borrower and each other Credit Party executing this Agreement shall execute and deliver a Power of Attorney in the form attached as Exhibit I. The power of attorney granted pursuant to the Power of Attorney and all powers granted under any Loan Document are powers coupled with an interest and shall be irrevocable until the Termination Date. The powers conferred on Lender under the Power of Attorney are solely to protect Lender's interests in the Collateral and shall not impose any duty upon it to exercise any such powers. Lender agrees not to exercise any power or authority granted under the Power of Attorney unless an Event of Default has occurred and is continuing. Each Borrower and each other Credit Party executing this Agreement also hereby (i) authorizes Lender to file any financing statements, continuation statements or amendments thereto that (x) indicate the Collateral (1) as all assets of such Credit Party (or any portion of such Credit Party's assets) or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the Code of such jurisdiction, or (2) as being of an equal or lesser scope or with greater detail, and (y) contain any other information required by Part 5 of Article 9 of the Code for the sufficiency or filing office acceptance of any financing statement, continuation statement or amendment and (ii) ratifies its authorization for Lender to have filed any initial financial statements, or amendments thereto if filed prior to the date hereof. Each Borrower and each other Credit Party executing this Agreement acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement without the prior written consent of Lender and agrees that it will not do so without the prior written 19 consent of Lender, subject to such Credit Party's rights under Section 9-509(d)(2) of the Code. 6.4 Grant of License to Use Intellectual Property Collateral. Each Borrower and each other Credit Party executing this Agreement hereby grants to Lender an irrevocable, non-exclusive license (exercisable upon the occurrence and during the continuance of an Event of Default without payment of royalty or other compensation to any Borrower or such Credit Party) to use, transfer, license or sublicense any Intellectual Property now owned, licensed to, or hereafter acquired by such Borrower or such Credit Party, and wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer and automatic machinery software and programs used for the compilation or printout thereof, and represents, promises and agrees that any such license or sublicense is not and will not be in conflict with the contractual or commercial rights of any third Person; provided, that such license will terminate on the Termination Date. 7. EVENTS OF DEFAULT: RIGHTS AND REMEDIES 7.1 Events of Default. The occurrence of any one or more of the following events (regardless of the reason therefor) shall constitute an "Event of Default" hereunder which shall be deemed to be continuing until waived in writing by Lender in accordance with Section 10.3: (a) any Borrower shall fail to make any payment in respect of any Obligations when due and payable or declared due and payable; or (b) (i) any Borrower or any other Credit Party (whether or not such Credit Party has signed this Agreement) shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions contained in Section 1, Sections 3.1, 3.2, 3.17, 3.18, 3.19, 3.20, 3.21, 3.22, 4.2 or Section 5 of this Agreement; or (ii) any Borrower or any other Credit Party (whether or not such Credit Party has signed this Agreement) shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions contained in this Agreement (other than those set forth in the Sections referred to in clause (i) immediately above) or any of the other Loan Documents, and such breach is not remediable or, if remediable, continues unremedied for a period of the earlier to occur of (x) ten (10) Business Days after the date on which such breach is known or reasonably should have become known to any officer of such Borrower or such Credit Party and (y) five (5) Business Days after the date on which Lender shall have notified such Borrower or such other Credit Party of such breach; or (c) an event of default shall occur under any Contractual Obligation (other than the El Cajon Lease) of any Borrower or any other Credit Party (other than this Agreement and the other Loan Documents), and such event of default (i) involves the failure to make any payment (whether or not such payment is blocked pursuant to the terms of an intercreditor agreement or otherwise), whether of principal, interest or otherwise, and whether due by scheduled maturity, required prepayment, acceleration, demand or otherwise, in respect of any Indebtedness (other than the Obligations) of such Person in an aggregate amount exceeding the Minimum Actionable Amount, or (ii) causes (or permits any holder of such Indebtedness or a trustee to cause) such Indebtedness, or a portion thereof, in an aggregate amount exceeding the Minimum Actionable Amount to become due prior to its stated maturity or prior to its regularly scheduled date of payment; or (d) any representation or warranty in this Agreement or any other Loan Document, or in any written statement pursuant hereto or thereto, or in any report, financial statement or certificate made or delivered to Lender by any Borrower or any other Credit Party shall be untrue or incorrect as of the date when made or deemed made, regardless of whether such breach involves a representation or warranty with respect to a Credit Party that has not signed this Agreement; or (e) there shall be commenced against any Borrower or any other Credit Party any Litigation seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that remains unstayed, unbonded or undismissed for thirty (30) consecutive days; or any Borrower or any other Credit Party shall have concealed, removed or permitted to be concealed or removed, any part of its property with intent to hinder, delay or defraud any of 20 its creditors or made or suffered a transfer of any of its property or the incurring of an obligation that may be fraudulent under any bankruptcy, fraudulent transfer or other similar law; or (f) a case or proceeding shall have been commenced involuntarily against any Borrower or any other Credit Party in a court having competent jurisdiction seeking a decree or order: (i) under the United States Bankruptcy Code or any other applicable Federal, state or foreign bankruptcy or other similar law, and seeking either (A) the appointment of a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Person or of any substantial part of its properties, or (B) the reorganization or winding up or liquidation of the affairs of any such Person, and such case or proceeding shall remain undismissed or unstayed for sixty (60) consecutive days or such court shall enter a decree or order granting the relief sought in such case or proceeding; or (ii) invalidating or denying any Person's right, power, or competence to enter into or perform any of its obligations under any Loan Document or invalidating or denying the validity or enforceability of this Agreement or any other Loan Document or any action taken hereunder or thereunder; or (g) any Borrower or any other Credit Party shall (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors, seeking to have an order for relief entered with respect to it or seeking appointment of a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for it or any substantial part of its properties, (ii) make a general assignment for the benefit of creditors, (iii) consent to or take any action in furtherance of, or, indicating its consent to, approval of, or acquiescence in, any of the acts set forth in paragraphs (e) or (f) of this Section 7.1 or clauses (i) and (ii) of this paragraph (g), or (iv) shall admit in writing its inability to, or shall be generally unable to, pay its debts as such debts become due; or (h) a final judgment or judgments for the payment of money in excess of the Minimum Actionable Amount in the aggregate shall be rendered against any Borrower or any other Credit Party, unless (i) the excess shall be fully covered by insurance and the issuer(s) of the applicable policies shall have acknowledged full coverage in writing within fifteen (15) days of judgment, or (ii) the same shall be vacated, stayed, bonded, paid or discharged within a period of fifteen (15) days from the date of such judgment; or (i) any other event shall have occurred that has had or could reasonably be expected to have a Material Adverse Effect; or (j) any provision of any Loan Document shall for any reason cease to be valid, binding and enforceable in accordance with its terms, or any Lien granted, or intended by the Loan Documents to be granted, to Lender shall cease to be a valid and perfected Lien having the first priority (or a lesser priority if expressly permitted in the Loan Documents) in any of the Collateral (or any Credit Party shall so assert any of the foregoing); or (k) a Change of Control shall have occurred with respect to any Corporate Credit Party; or (l) an ERISA Event shall have occurred that, in the opinion of the Lender, when taken together with all other ERISA Events that have occurred and are then continuing, could reasonably be expected to result in liability of any Credit Party in an aggregate amount exceeding the Minimum Actionable Amount. 7.2 Remedies. (a) If any Default shall have occurred and be continuing, then Lender may terminate or suspend its obligation to make further Revolving Credit Advances and to incur additional Letter of Credit Obligations. In addition, if any Event of Default shall have occurred and be continuing, Lender may, without notice, take any one or more of the following actions: (i) declare all or any portion of the Obligations to be forthwith due and payable, including contingent liabilities with respect to Letter of Credit Obligations, whereupon such Obligations shall become and be due and payable; (ii) require that all Letter of Credit Obligations be fully cash collateralized pursuant to Schedule C; or (iii) exercise any rights and remedies provided to Lender under the Loan Documents or at law or equity, including all remedies provided under the Code; provided, that upon the occurrence of any Event of Default specified in Sections 7.1 (e), (f) or (g), the Obligations shall become immediately due and payable (and any obligation of Lender to make further Loans, if not previously terminated, shall immediately be terminated) without declaration, notice or demand by Lender. 21 (b) Without limiting the generality of the foregoing, each Borrower and each other Credit Party executing this Agreement expressly agrees that upon the occurrence of any Event of Default, Lender may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Lender shall have the right upon any such public sale, to the extent permitted by law, to purchase for the benefit of Lender the whole or any part of said Collateral so sold, free of any right of equity of redemption, which right each Borrower and each other Credit Party executing this Agreement hereby releases. Such sales may be adjourned, or continued from time to time with or without notice. Lender shall have the right to conduct such sales on any Credit Party's premises or elsewhere and shall have the right to use any Credit Party's premises without rent or other charge for such sales or other action with respect to the Collateral for such time as Lender deems necessary or advisable. (c) Upon the occurrence and during the continuance of an Event of Default and at Lender's request, each Borrower and each other Credit Party executing this Agreement further agrees to assemble the Collateral and make it available to Lender at places that Lender shall reasonably select, whether at its premises or elsewhere. Until Lender is able to effect a sale, lease, or other disposition of the Collateral, Lender shall have the right to complete, assemble, use or operate the Collateral or any part thereof, to the extent that Lender deems appropriate, for the purpose of preserving such Collateral or its value or for any other purpose. Lender shall have no obligation to any Credit Party to maintain or preserve the rights of such Credit Party as against third parties with respect to any Collateral while such Collateral is in the possession of Lender. Lender may, if it so elects, seek the appointment of a receiver or keeper to take possession of any Collateral and to enforce any of Lender's remedies with respect thereto without prior notice or hearing. To the maximum extent permitted by applicable law, each Borrower and each other Credit Party executing this Agreement waives all claims, damages, and demands against Lender, its Affiliates, agents, and the officers and employees of any of them arising out of the repossession, retention or sale of any Collateral except such as are determined in a final judgment by a court of competent jurisdiction to have arisen solely out of the gross negligence or willful misconduct of such Person. Each Borrower and each other Credit Party executing this Agreement agrees that ten (10) days' prior notice by Lender to such Credit Party of the time and place of any public sale or of the time after which a private sale may take place is reasonable notification of such matters. Each Borrower and each other Credit Party shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which Lender is entitled. (d) Lender's rights and remedies under this Agreement shall be cumulative and nonexclusive of any other rights and remedies that Lender may have under any Loan Document or at law or in equity. Recourse to the Collateral shall not be required. All provisions of this Agreement are intended to be subject to all applicable mandatory provisions of law that may be controlling and to be limited, to the extent necessary, so that they do not render this Agreement invalid or unenforceable, in whole or in part. 7.3 Waivers by Credit Parties. Except as otherwise provided for in this Agreement and to the fullest extent permitted by applicable law, each Borrower and each other Credit Party executing this Agreement waives: (a) presentment, demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all Loan Documents, the Notes or any other notes, commercial paper, Accounts, Contracts, Documents, Instruments, Chattel Paper and guaranties at any time held by Lender on which such Credit Party may in any way be liable, and hereby ratifies and confirms whatever Lender may do in this regard; (b) all rights to notice and a hearing prior to Lender's taking possession or control of, or to Lender's replevy, attachment or levy upon, any Collateral or any bond or security that might be required by any court prior to allowing Lender to exercise any of its remedies; and (c) the benefit of all valuation, appraisal and exemption laws. Each Borrower and each other Credit Party executing this Agreement acknowledges that it has been advised by counsel of its choices and decisions with respect to this Agreement, the other Loan Documents and the transactions evidenced hereby and thereby. 7.4 Proceeds. The Proceeds of any sale, disposition or other realization upon any Collateral shall be applied by Lender upon receipt to the Obligations in such order as Lender may deem advisable in its sole discretion (including the cash collateralization of any Letter of Credit Obligations), and after the 22 indefeasible payment and satisfaction in full in cash of all of the Obligations, and after the payment by Lender of any other amount required by any provision of law, including Sections 9-608(a)(1) and 9-615(a)(3) of the Code (but only after Lender has received what Lender considers reasonable proof of a subordinate party's security interest), the surplus, if any, shall be paid to Borrowers or their representatives or to whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. 8. Successors and Assigns Each Loan Document shall be binding on and shall inure to the benefit of each Borrower and each other Credit Party executing such Loan Document, Lender, and their respective successors and assigns, except as otherwise provided herein or therein. Neither any Borrower nor any other Credit Party may assign, transfer, hypothecate, delegate or otherwise convey its rights, benefits, obligations or duties under any Loan Document without the prior express written consent of Lender. Any such purported conveyance by such Borrower or such Credit Party without the prior express written consent of Lender shall be void. There shall be no third party beneficiaries of any of the terms and provisions of any of the Loan Documents. Lender reserves the right at any time to create and sell participations in the Loans and the Loan Documents and to sell, transfer or assign any or all of its rights in the Loans and under the Loan Documents. 9. Guarantor Waivers by Borrowers IF AND TO THE EXTENT THAT ANY OBLIGATION OF ANY BORROWER TO LENDER SHALL BE CONSIDERED AN OBLIGATION OF GUARANTY OR SURETYSHIP, THEN THE FOLLOWING PROVISIONS OF THIS SECTION 9 SHALL APPLY WITH RESPECT TO EACH SUCH BORROWER SOLELY TO THE EXTENT THAT SUCH BORROWER IS DEEMED TO ACT IN THE CAPACITY OF A GUARANTOR AND SHALL NOT EFFECT A WAIVER OF RIGHTS IN SUCH PERSON'S CAPACITY AS A BORROWER: (A) SUCH BORROWER EXPRESSLY WAIVES THE RIGHT TO REQUIRE LENDER FIRST TO PURSUE ANY OTHER PERSON, THE COLLATERAL, OR ANY OTHER SECURITY OR GUARANTY THAT MAY BE HELD FOR THE OBLIGATIONS, OR TO APPLY ANY SUCH SECURITY OR GUARANTY TO THE OBLIGATIONS BEFORE SEEKING FROM SUCH BORROWER PAYMENT IN FULL OF ITS LIABILITIES TO LENDER OR PROCEEDING AGAINST SUCH BORROWER FOR SAME. (B) SUCH BORROWER ACKNOWLEDGES THAT IF LENDER MAY, UNDER APPLICABLE LAW, PROCEED TO REALIZE ITS BENEFITS UNDER ANY OF THE LOAN DOCUMENTS GIVING LENDER A LIEN UPON ANY COLLATERAL, WHETHER OWNED BY ANY BORROWER OR BY ANY OTHER PERSON, EITHER BY JUDICIAL FORECLOSURE OR BY NON-JUDICIAL SALE OR ENFORCEMENT, LENDER MAY, AT ITS SOLE OPTION, DETERMINE WHICH OF ITS REMEDIES OR RIGHTS IT MAY PURSUE WITHOUT AFFECTING ANY OF ITS RIGHTS AND REMEDIES. IF, IN THE EXERCISE OF ANY OF ITS RIGHTS AND REMEDIES, LENDER SHALL FORFEIT ANY OF ITS RIGHTS OR REMEDIES, INCLUDING ITS RIGHT TO ENTER A DEFICIENCY JUDGMENT AGAINST ANY BORROWER OR ANY OTHER PERSON, WHETHER BECAUSE OF ANY APPLICABLE LAWS PERTAINING TO "ELECTION OF REMEDIES" OR THE LIKE, SUCH BORROWER HEREBY CONSENTS TO SUCH ACTION BY LENDER AND WAIVES ANY CLAIM BASED UPON SUCH ACTION, EVEN IF SUCH ACTION BY LENDER SHALL RESULT IN A FULL OR PARTIAL LOSS OF ANY RIGHTS OF SUBROGATION WHICH SUCH BORROWER MIGHT OTHERWISE HAVE HAD BUT FOR SUCH ACTION BY LENDER. ANY ELECTION OF REMEDIES THAT RESULTS IN THE DENIAL OR IMPAIRMENT OF THE RIGHT OF LENDER TO SEEK A DEFICIENCY JUDGMENT AGAINST ANY BORROWER SHALL NOT IMPAIR ANY OTHER BORROWER'S OBLIGATION TO PAY THE FULL AMOUNT OF THE OBLIGATIONS. IN THE EVENT LENDER SHALL BID AT ANY FORECLOSURE OR TRUSTEE'S SALE OR AT ANY PRIVATE SALE PERMITTED BY LAW OR THE LOAN DOCUMENTS, LENDER MAY BID ALL OR LESS THAN THE AMOUNT OF THE OBLIGATIONS AND THE AMOUNT OF SUCH BID NEED NOT BE PAID BY LENDER BUT SHALL BE CREDITED AGAINST THE OBLIGATIONS. THE AMOUNT OF THE SUCCESSFUL BID AT ANY SUCH SALE, WHETHER LENDER OR ANY OTHER PARTY IS THE SUCCESSFUL BIDDER, SHALL BE CONCLUSIVELY DEEMED TO BE THE FAIR MARKET VALUE OF 23 THE COLLATERAL AND THE DIFFERENCE BETWEEN SUCH BID AMOUNT AND THE REMAINING BALANCE OF THE OBLIGATIONS SHALL BE CONCLUSIVELY DEEMED TO BE THE AMOUNT OF THE OBLIGATIONS GUARANTEED BY SUCH BORROWER, NOTWITHSTANDING THAT ANY PRESENT OR FUTURE LAW OR COURT DECISION OR RULING MAY HAVE THE EFFECT OF REDUCING THE AMOUNT OF ANY DEFICIENCY CLAIM TO WHICH LENDER MIGHT OTHERWISE BE ENTITLED BUT FOR SUCH BIDDING AT ANY SUCH SALE. (C) SUCH BORROWER AGREES THAT LENDER SHALL BE UNDER NO OBLIGATION TO (I) MARSHAL ANY ASSETS IN FAVOR OF SUCH BORROWER, (II) PROCEED FIRST AGAINST ANY OTHER BORROWER OR PERSON OR ANY PROPERTY OF ANY OTHER BORROWER OR PERSON OR AGAINST ANY COLLATERAL, (III) ENFORCE FIRST ANY OTHER GUARANTY OBLIGATIONS WITH RESPECT TO, OR SECURITY FOR, THE OBLIGATIONS, OR (IV) PURSUE ANY OTHER REMEDY IN LENDER'S POWER THAT SUCH BORROWER MAY NOT BE ABLE TO PURSUE ITSELF AND THAT MAY LIGHTEN SUCH BORROWER'S BURDEN, ANY RIGHT TO WHICH SUCH BORROWER HEREBY EXPRESSLY WAIVES. (D) EACH BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVERS ARE A MATERIAL INDUCEMENT TO LENDER'S ENTERING INTO THIS AGREEMENT AND THAT LENDER IS RELYING UPON THE FOREGOING WAIVERS IN ITS FUTURE DEALINGS WITH SUCH BORROWER. EACH BORROWER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THE FOREGOING WAIVERS WITH ITS LEGAL COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. 10. Miscellaneous 10.1 Complete Agreement; Modification of Agreement. This Agreement and the other Loan Documents constitute the complete agreement between the parties with respect to the subject matter hereof and thereof, supersede all prior agreements, commitments, understandings or inducements (oral or written, expressed or implied). No Loan Document may be modified, altered or amended except by a written agreement signed by Lender, and each other Credit Party a party to such Loan Document. Each Borrower and each other Credit Party executing this Agreement or any other Loan Document shall have all duties and obligations under this Agreement and such other Loan Document from the date of its execution and delivery, regardless of whether the initial Loan has been funded at that time. 10.2 Expenses. Borrowers agree to pay or reimburse Lender for all costs and expenses (including the fees and expenses of all external counsel, advisors, consultants (including environmental and management consultants) and auditors retained in connection therewith), incurred in connection with: (a) the preparation, negotiation, execution, delivery, performance and enforcement of the Loan Documents and the preservation of any rights thereunder; provided, however, that Borrowers' obligation to pay or reimburse Lender for external counsel's fees through the Closing Date is limited to 100% of external counsel's fees through and including $37,500, and 50% of external counsel's fees above $37,500; (b) collection, including deficiency collections; (c) the forwarding to any Borrower or any other Person on behalf of any Borrower by Lender of the proceeds of any Loan (including a wire transfer fee of $25 per wire transfer (or, upon notice from Lender, such other rate as in effect from time to time)); (d) any amendment, waiver or other modification with respect to any Loan Document or advice in connection with the administration of the Loans or the rights thereunder; (e) any litigation, dispute, suit, proceeding or action (whether instituted by or between any combination of Lender, any Borrower or any other Person), and an appeal or review thereof, in any way relating to the Collateral, any Loan Document, or any action taken or any other agreements to be executed or delivered in connection therewith, whether as a party, witness or otherwise; and (f) any effort (i) to monitor the Loans, (ii) to evaluate, observe or assess any Borrower or any other Credit Party or the affairs of such Person, and (iii) to verify, protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise dispose of the Collateral. Lender acknowledges that (A) the initial field audit expenses are capped at $15,000, and (B) Borrowers have deposited $82,500 with Lender in connection with payment of the fees and expenses referenced above, in each case as set forth in the Commitment Letter. 10.3 No Waiver. Neither Lender's failure, at any time, to require strict performance by any Borrower or any other Credit Party of any provision of any 24 Loan Document, nor Lender's failure to exercise, nor any delay in exercising, any right, power or privilege hereunder, shall operate as a waiver thereof or waive, affect or diminish any right of Lender thereafter to demand strict compliance and performance therewith. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or future exercise thereof or the exercise of any other right, power or privilege. Any suspension or waiver of a Default or other provision under the Loan Documents shall not suspend, waive or affect any other Default or other provision under any Loan Document, and shall not be construed as a bar to any right or remedy that Lender would otherwise have had on any future occasion. None of the undertakings, indemnities, agreements, warranties, covenants and representations of any Borrower or any other Credit Party to Lender contained in any Loan Document and no Default by any Borrower or any other Credit Party under any Loan Document shall be deemed to have been suspended or waived by Lender, unless such waiver or suspension is by an instrument in writing signed by an officer or other authorized employee of Lender and directed to such Borrower specifying such suspension or waiver (and then such waiver shall be effective only to the extent therein expressly set forth), and Lender shall not, by any act (other than execution of a formal written waiver), delay, omission or otherwise, be deemed to have waived any of its rights or remedies hereunder. 10.4 Severability; Section Titles. Wherever possible, each provision of the Loan Documents shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of any Loan Document shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of such Loan Document. Except as otherwise expressly provided for in the Loan Documents, no termination or cancellation (regardless of cause or procedure) of any financing arrangement under the Loan Documents shall in any way affect or impair the Obligations, duties, covenants, representations and warranties, indemnities, and liabilities of any Borrower or any other Credit Party or the rights of Lender relating to any unpaid Obligation (due or not due, liquidated, contingent or unliquidated), or any transaction or event occurring prior to such termination, or any transaction or event, the performance of which is not required until after the Commitment Termination Date, all of which shall not terminate or expire, but rather shall survive such termination or cancellation and shall continue in full force and effect until the Termination Date; provided, that all indemnity obligations of the Credit Parties under the Loan Documents shall survive the Termination Date. The Section titles contained in any Loan Document are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto. 10.5 Authorized Signature. Until Lender shall be notified in writing by any Borrower or any other Credit Party to the contrary, the signature upon any document or instrument delivered pursuant hereto and believed by Lender or any of Lender's officers, agents, or employees to be that of an officer of such Borrower or such other Credit Party shall bind such Borrower and such other Credit Party and be deemed to be the act of such Borrower or such other Credit Party affixed pursuant to and in accordance with resolutions duly adopted by such Borrower's or such other Credit Party's Board of Directors, and Lender shall be entitled to assume the authority of each signature and authority of the person whose signature it is or appears to be unless the person acting in reliance thereon shall have actual knowledge to the contrary. 10.6 Notices. Except as otherwise provided herein, whenever any notice, demand, request or other communication shall or may be given to or served upon any party by any other party, or whenever any party desires to give or serve upon any other party any communication with respect to this Agreement, each such communication shall be in writing and shall be deemed to have been validly served, given or delivered (a) upon the earlier of actual receipt and three (3) days after deposit in the United States Mail, registered or certified mail, return receipt requested, with proper postage prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile transmission (with such telecopy or facsimile promptly confirmed by delivery of a copy by personal delivery or United States Mail as otherwise provided in this Section 10.6), (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid or (d) when hand-delivered, all of which shall be addressed to the party to be notified and sent to the address or facsimile number indicated in Schedule B or to such other address (or facsimile number) as may be substituted by notice given as herein provided.. Failure or delay in delivering copies of such communication to any Person (other than any Borrower or Lender) designated in Schedule B to receive copies shall in no way adversely affect the effectiveness of such communication. 10.7 Counterparts. Any Loan Document may be executed or otherwise authenticated 25 in any number of separate counterparts by any one or more of the parties thereto, and all of said counterparts taken together shall constitute one and the same instrument. Any Loan Document may be executed or otherwise authenticated by manual signature, facsimile or, if approved in writing by Lender, electronic means, all of which shall be equally valid. 10.8 Time of the Essence. Time is of the essence for performance of the Obligations under the Loan Documents. 10.9 GOVERNING LAW. THE LOAN DOCUMENTS AND THE OBLIGATIONS ARISING UNDER THE LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE 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, provided, however, that EACH Borrower specifically consents to the applicability of the law of the state in which such borrower has assets (without regard to such state's conflicts of laws principles) with respect to Lender's exercise and enforcement of the remedy of confession of judgment set forth herein and EACH BORROWER PARTY expressly waives any defense which SUCH Borrower may have against the enforcement by Lender of the confession of judgment remedy, based upon any theory of law or equitable principle whatsoever, including, without limitation, any claim by SUCH Borrower that the governing laws of the State of New York may not permit the entry of judgment by confession. 10.10 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. (A) EACH BORROWER AND EACH OTHER CREDIT PARTY EXECUTING THIS AGREEMENT HEREBY CONSENT AND AGREE THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN SUCH BORROWER AND SUCH CREDIT PARTY AND LENDER PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT LENDER, SUCH BORROWER AND SUCH CREDIT PARTY ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK; AND FURTHER PROVIDED, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE LENDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF LENDER. SUCH BORROWER AND EACH OTHER CREDIT PARTY EXECUTING THIS AGREEMENT EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND SUCH BORROWER AND SUCH CREDIT PARTY HEREBY WAIVE ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH BORROWER AND EACH OTHER CREDIT PARTY EXECUTING THIS AGREEMENT HEREBY WAIVE PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREE THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH BORROWER OR SUCH CREDIT PARTY AT THE ADDRESS SET FORTH IN SCHEDULE B OF THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH BORROWER'S OR SUCH CREDIT PARTY'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID. (B) THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN LENDER, ANY BORROWER AND ANY CREDIT PARTY ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS RELATED THERETO. 26 10.11 Press Releases. Neither any Credit Party nor any of its Affiliates will in the future issue any press release or other public disclosure using the name of General Electric Capital Corporation or its affiliates or referring to this Agreement or the other Loan Documents without at least two (2) Business Days' prior notice to Lender and without the prior written consent of Lender unless (and only to the extent that) such Credit Party or Affiliate is required to do so under law and then, in any event, such Credit Party or Affiliate will consult with Lender before issuing such press release or other public disclosure. Each Credit Party consents to the publication by Lender of a tombstone or similar advertising material relating to the financing transactions contemplated by this Agreement. Lender reserves the right to provide to industry trade organizations information necessary and customary for inclusion in league table measurements with each Borrower's consent which shall not be unreasonably withheld or delayed. 10.12 Reinstatement. This Agreement shall continue to be effective, or be reinstated, as the case may be, if at any time payment of all or any part of the Obligations is rescinded or must otherwise be returned or restored by Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Borrower or any other Credit Party, or otherwise, all as though such payments had not been made. 10.13 CONFESSION OF JUDGMENT. EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS LENDER, BY ITS ATTORNEY OR BY THE PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN COMMONWEALTH OF PENNSYLVANIA OR IN ANY JURISDICTION WHERE PERMITTED BY LAW, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, OR AT ANY TIME THEREAFTER, TO APPEAR FOR SUCH BORROWER AND CONFESS AND ENTER JUDGMENT AGAINST SUCH BORROWER IN FAVOR OF LENDER IN ANY JURISDICTION WHERE SUCH BORROWER OR ANY OF ITS PROPERTY IS LOCATED FOR THE AMOUNT OF ALL OBLIGATIONS AND OTHER SUMS DUE OR TO BECOME DUE BY SUCH BORROWER TO LENDER UNDER THIS AGREEMENT, TOGETHER WITH COSTS OF SUIT AND WITH ACTUAL COLLECTION COSTS (INCLUDING ATTORNEYS' FEES), WITH OR WITHOUT DECLARATION, WITHOUT STAY OF EXECUTION AND WITH RELEASE OF ALL ERRORS AND THE RIGHT TO ISSUE EXECUTION FORTHWITH, AND FOR DOING SO THIS AGREEMENT OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. EACH BORROWER HEREBY WAIVES ALL RELIEF FROM ANY APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. THIS AUTHORITY AND POWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, AND JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS THERE IS OCCASION THEREFOR UNTIL ALL SUMS DUE AND OWING HEREUNDER ARE FULLY PAID, PERFORMED, DISCHARGED AND SATISFIED. EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS LENDER, BY ITS ATTORNEY OR BY THE PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR IN ANY JURISDICTION WHERE PERMITTED BY LAW, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, OR AT ANY TIME THEREAFTER, TO APPEAR FOR SUCH BORROWER, AS WELL AS FOR ANY PERSONS CLAIMING UNDER, BY OR THROUGH SUCH BORROWER, IN AN ACTION OR ACTIONS FOR REPLEVIN OR OTHER APPROPRIATE ACTION AGAINST SUCH BORROWER TO CONFESS AND ENTER JUDGMENT AGAINST SUCH BORROWER, FOR RECOVERY OF POSSESSION OF ANY OR ALL COLLATERAL AND/OR THE PROCEEDS THEREOF, TOGETHER WITH COSTS OF SUIT AND WITH ACTUAL COLLECTION COSTS (INCLUDING ATTORNEYS' FEES), WITHOUT THE NECESSITY OF FILING ANY BOND AND WITHOUT STAY OF EXECUTION OR APPEAL AND WITH RELEASE OF ALL ERRORS AND FOR DOING SO THIS AGREEMENT OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT, WHEREUPON A JUDGMENT AND/OR WRIT OF POSSESSION AND/OR REPLEVIN OR OTHER APPROPRIATE PROCESS TO OBTAIN POSSESSION OF SUCH COLLATERAL MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER. THIS AUTHORITY AND POWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, AND JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS THERE IS OCCASION THEREFOR UNTIL ALL SUMS DUE AND OWING HEREUNDER ARE FULLY PAID, PERFORMED, DISCHARGED AND SATISFIED. 11. Cross-Guaranty 27 11.1 Cross-Guaranty. Each Borrower hereby absolutely and unconditionally guarantees to Lender and its successors and assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of all Obligations owed or hereafter owing to Lender by each other Borrower, including that portion of the Revolving Credit Loan attributable to each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, and that its obligations under this Section 11 shall be absolute and unconditional, irrespective of, and unaffected by: (a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party; (b) the absence of any action to enforce this Agreement (including this Section 11) or any other Loan Document or the waiver or consent by Lender with respect to any of the provisions hereof or thereof; (c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Lender in respect thereof (including the release of any such security); (d) the insolvency of any Credit Party; or (e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being agreed by each Borrower that its obligations under this Section 11 shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder. 11.2 Waivers by Borrowers. Each Borrower expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel Lender to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other Credit Party, any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition to proceeding against, such Borrower. It is agreed among each Borrower and Lender that the foregoing waivers are of the essence of the transactions contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Section 11 and such waivers, Lender would decline to enter into this Agreement. 11.3 Benefit of Guaranty. Each Borrower agrees that the provisions of this Section 11 are for the benefit of Lender and its successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between any other Borrower and Lender, the obligations of such other Borrower under the Loan Documents. 11.4 Subordination of Subrogation. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in Section 11.7, each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower acknowledges and agrees that this waiver is intended to benefit Lender and shall not limit or otherwise affect such Borrower's liability hereunder or the enforceability of this Section 11, and that Lender and its successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 11.4. 11.5 Election of Remedies. If Lender may, under applicable law, proceed to realize its benefits under any of the Loan Documents giving Lender a Lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 11. If, in the exercise of any of its rights and remedies, Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any applicable laws pertaining to "election of remedies" or the like, each Borrower hereby consents to such action by Lender and waives any claim based upon such action, even if such action by Lender shall result in a full or partial loss of any rights of subrogation which such Borrower might otherwise have had but for such action by Lender. Any election of remedies that results in the denial or impairment of the right of Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower's obligation to pay the full amount of the 28 Obligations. In the event Lender shall bid at any foreclosure or trustee's sale or at any private sale permitted by law or the Loan Documents, Lender may bid all or less than the amount of the Obligations and the amount of such bid need not be paid by Lender but may be credited against the Obligations. The amount of the successful bid at any such sale, whether Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 11, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Lender might otherwise be entitled but for such bidding at any such sale. In addition, each Borrower waives all rights and defenses arising out of an election of remedies by Lender, even though the election of remedies, such as a non-judicial foreclosure with respect to security for the Obligations, has destroyed any Borrower's rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise. 11.6 Limitation. Notwithstanding any provision herein contained to the contrary, each Borrower's liability under this Section 11 (which liability is in any event in addition to amounts for which such Borrower is primarily liable under Section 1) shall be limited to an amount not to exceed as of any date of determination the greater of: (a) the net amount of all Loans advanced to any other Borrower under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower; and (b) the amount which could be claimed by Lender from such Borrower under this Section 11 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the United States Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Borrower's right of contribution and indemnification from each other Borrower under Section 11.7. 11.7 Contribution with Respect to Guaranty Obligations. (a) To the extent that any Borrower shall make a payment under this Section 11 of all or any of the Obligations (other than Loans made to that Borrower for which it is primarily liable) (a "Guarantor Payment") which, taking into account all other Guarantor Payments then previously or concurrently made by any other Borrower, exceeds the amount which such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion that such Borrower's "Allocable Amount" (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Borrowers as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Obligations and termination of the Commitments, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. (b) As of any date of determination, the "Allocable Amount" of any Borrower shall be equal to the maximum amount of the claim which could then be recovered from such Borrower under this Section 11 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the United States Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. (c) This Section 11.7 is intended only to define the relative rights of Borrowers and nothing set forth in this Section 11.7 is intended to or shall impair the obligations of each Borrower to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement, including Section 11.1. Nothing contained in this Section 11.7 shall limit the liability of any Borrower to pay the Loans made directly or indirectly to that Borrower and accrued interest, Fees and expenses with respect thereto for which such Borrower shall be primarily liable. (d) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of Borrower to which such contribution and indemnification is owing. 29 (e) The rights of the indemnifying Borrowers against other Credit Parties under this Section 11.7 shall be exercisable upon the full and indefeasible payment of the Obligations and the termination of Lender's obligation to extend any credit under this Agreement. 11.8 Liability Cumulative. The liability of Borrowers under this Section 11 is in addition to and shall be cumulative with all liabilities of each Borrower to Lender under this Agreement and the other Loan Documents to which such Borrower is a party or in respect of any Obligations or obligation of the other Borrowers, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary. [Remainder of page intentionally left blank] 30 IN WITNESS WHEREOF, this Loan and Security Agreement has been duly executed as of the date first written above. SPARKS EXHIBITS & ENVIRONMENTS CORP. By: /s/ Robert B. Ginsburg ------------------ Name: Robert B. Ginsburg Title: Chief Financial Officer SPARKS EXHIBITS & ENVIRONMENTS, LTD. By: /s/ Robert B. Ginsburg ------------------ Name: Robert B. Ginsburg Title: Chief Financial Officer SPARKS EXHIBITS & ENVIRONMENTS, INC. By: /s/ Robert B. Ginsburg ------------------ Name: Robert B. Ginsburg Title: Chief Financial Officer DMS STORE FIXTURES LLC By: /s/ Robert B. Ginsburg ------------------ Name: Robert B. Ginsburg Title: Chief Financial Officer GENERAL ELECTRIC CAPITAL CORPORATION By: /s/ Antimo F. Barbieri ------------------ Name: Antimo F. Barbieri Title: Duly Authorized Signatory 31 Each of the undersigned is a Credit Party and a guarantor of the Obligations and hereby intervenes to confirm and acknowledge that it has read and understands the foregoing agreement, and consents to and agrees to be bound by all provisions contained therein applicable to such undersigned. MARLTON TECHNOLOGIES, INC. By:/s/ Robert B. Ginsburg ------------------ Name: Robert B. Ginsburg Title: Chief Executive Officer SPARKS EXHIBITS HOLDING CORPORATION By: /s/ Robert B. Ginsburg ------------------ Name: Robert B. Ginsburg Title: Chief Financial Officer SPARKS EXHIBITS & ENVIRONMENTS INCORPORATED By:/s/ Robert B. Ginsburg ------------------ Name: Robert B. Ginsburg Title: Chief Financial Officer SPARKS EXHIBITS & ENVIRONMENTS COMPANY By: /s/ Robert B. Ginsburg ------------------ Name: Robert B. Ginsburg Title: Chief Financial Officer 32 Schedule A - Definitions Capitalized terms used in this Agreement and the other Loan Documents shall have (unless otherwise provided elsewhere in this Agreement or in the other Loan Documents) the following respective meanings: "Account Debtor" means any Person who is or may become obligated with respect to, or on account of, an Account, Chattel Paper or General Intangible (including a Payment Intangible). "Accounts" means all "accounts," as such term is defined in the Code, now owned or hereafter acquired by any Person, including: (i) all accounts receivable, other receivables, book debts and other forms of obligations (other than forms of obligations evidenced by Chattel Paper or Instruments) (including any such obligations that may be characterized as an account or contract right under the Code); (ii) all of such Person's rights in, to and under all purchase orders or receipts for goods or services; (iii) all of such Person's rights to any goods represented by any of the foregoing (including unpaid sellers' rights of rescission, replevin, reclamation and stoppage in transit and rights to returned, reclaimed or repossessed goods); (iv) all rights to payment due to such Person under all purchase orders and contracts for the sale of goods or the performance of services or both for Goods or other property sold, leased, licensed, assigned or otherwise disposed of, for a policy of insurance issued or to be issued, for a secondary obligation incurred or to be incurred, for energy provided or to be provided, for the use or hire of a vessel under a charter or other contract, arising out of the use of a credit card or charge card, or for services rendered or to be rendered by such Person or in connection with any other transaction (whether or not yet earned by performance on the part of such Person); and (v) all health care insurance receivables; and (vi) all collateral security of any kind given by any Account Debtor or any other Person with respect to any of the foregoing. "Accounts Payable Analysis" means a certificate in the form of Exhibit D. "Accounts Receivable Roll Forward Analysis" means a certificate in the form of Exhibit E. "Additional Stockholder Loan" has the meaning assigned to it in Section 3.22. "Affiliate" means, with respect to any Person: (i) each other Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, twenty percent (20%) or more of the Stock having ordinary voting power for the election of directors of such Person; (ii) each other Person that controls, is controlled by or is under common control with such Person or any Affiliate of such Person; or (iii) each of such Person's officers, directors, joint venturers (limited to those joint ventures in which such Person, directly or indirectly, owns or controls twenty percent (20%) or more of the Stock thereof) and partners. For the purpose of this definition, "control" of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise. "Agreement" means this Agreement including all appendices, exhibits or schedules attached or otherwise identified thereto, restatements and modifications and supplements thereto, and any appendices, exhibits or schedules to any of the foregoing, each as in effect at the time such reference becomes operative; provided, that except as specifically set forth in this Agreement, any reference to the Disclosure Schedules to this Agreement shall be deemed a reference to the Disclosure Schedules as in effect on the Closing Date or in a written amendment thereto executed by Borrower and Lender. "Blocked Account" and "Blocked Account Agreement" have the meanings assigned to such terms in Schedule D. "Books and Records" means all books, records, board minutes, contracts, licenses, insurance policies, environmental audits, business plans, files, computer files, computer discs and other data and software storage and media devices, accounting books and records, financial statements (actual and pro forma), filings with Governmental Authorities and any and all records and instruments relating to the Collateral or any Borrower's business. "Borrower" and "Borrowers" has the meanings assigned to them in the preamble of this Agreement. "Borrowing Availability" means, at any time with respect to any Borrower, the lesser of (i) the Maximum Amount less the sum of the aggregate Revolving Credit Loans attributable to the other Borrowers or (ii) such Borrower's Borrowing 33 Base, in each case less reserves (including, without limitation, the Special Reserve) established by Lender from time to time in its good faith credit judgment. "Borrowing Base" means at any time with respect to any Borrower, an amount equal to the sum at such time of: (a) up to 85% of the value (as determined by Lender in accordance with this Agreement) of each Borrower's Eligible Accounts; provided, that Lender shall reduce the foregoing percentage by one percentage point for each percentage point that the dilution of such Borrower's Accounts (calculated by Lender as the average dilution over the most recent 3 months) exceeds 5%; plus (b) 80% of the value (as determined by Lender in accordance with this Agreement) of each Borrower's Eligible Shipped/Unbilled Assets, provided however, that the aggregate amount of advances outstanding at any time against all Borrowers' Eligible Shipped/Unbilled Assets shall not exceed $2,500,000, plus (c) the sum of (i) 50% of the value of each Borrower's Eligible Inventory consisting of raw materials, in each case as determined by Lender in accordance with this Agreement, valued on a first-in, first-out basis (at the lower of cost or market), provided however, that the aggregate amount of advances outstanding at any time against all Borrowers' Eligible Inventory consisting of raw materials shall not exceed $500,000, and (ii) 60% of the value of each Borrower's Eligible Inventory consisting of finished goods, in each case as determined by Lender in accordance with this Agreement, valued on a first-in, first-out basis (at the lower of cost or market), provided however, that the aggregate amount of advances outstanding at any time against all Borrowers' Eligible Inventory consisting of finished goods designated for (A) any single customer shall not exceed $2,000,000, and (B) all customers shall not exceed $3,000,000. "Borrowing Base Certificate" means a certificate in the form of Exhibit C. "Business Day" means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York. "Capital Expenditures" means all payments or accruals (including Capital Lease Obligations) for any fixed assets or improvements (excluding the acquisition of Exhibit Crafts, Inc. completed on August 1, 2003) or for replacements, substitutions or additions thereto, that have a useful life of more than one year and that are required to be capitalized under GAAP. "Capital Lease" means, with respect to any Person, any lease of any property (whether real, personal or mixed) by such Person as lessee that, in accordance with GAAP, either would be required to be classified and accounted for as a capital lease on a balance sheet of such Person or otherwise would be disclosed as such in a note to such balance sheet, other than, in the case of any Borrower, any such lease under which such Borrower is the lessor. "Capital Lease Obligation" means, with respect to any Capital Lease, the amount of the obligation of the lessee thereunder that, in accordance with GAAP, would appear on a balance sheet of such lessee in respect of such Capital Lease or otherwise be disclosed in a note to such balance sheet. "Cash Collateral Account" has the meaning assigned to it in Schedule C. "Change of Control" means (a) any event, transaction or occurrence as a result of which (i) Jeffrey Harrow, Scott Tarte and Robert Ginsburg cease to own and control all of the economic and voting rights associated with (A) at least seventy five percent (75%) of the outstanding capital Stock of Marlton owned by them as of the Closing Date, provided that they may transfer Stock among themselves, and (B) ownership of at least thirty percent (30%) of the outstanding capital Stock of all classes of Marlton on a fully diluted basis, (ii) Marlton shall cease to own and control all of the economic and voting rights associated with all of the outstanding capital Stock of Sparks Holding, (iii) Sparks Holding shall cease to own and control all of the economic and voting rights associated with all of the outstanding capital Stock of Leading Borrower, (iv) Leading Borrower shall cease to own and control all of the economic and voting rights associated with all of the outstanding capital Stock of Third Borrower and Fourth Borrower, or (v) Leading Borrower shall cease to own and control all of the economic and voting rights associated with eighty percent (80%) of the outstanding capital Stock of Second Borrower, (b) at least two (2) of Jeffrey Harrow, Scott Tarte and Robert Ginsburg shall cease to be the 34 executive officers (in either form or substance) of each of the Borrowers, Sparks Holding and Marlton, and replacement executive officers satisfactory to Lender in its reasonable discretion are not elected within six weeks after the date such officer no longer holds such office, or (c) at least two (2) of Jeffrey Harrow, Scott Tarte and Robert Ginsburg shall cease to be members of the Board of Directors of each of the Borrowers, Sparks Holding and Marlton, and replacement directors satisfactory to Lender in its reasonable discretion are not elected within six weeks after the date such director no longer holds such office. "Charges" means all Federal, state, county, city, municipal, local, foreign or other governmental taxes (including taxes owed to PBGC at the time due and payable), levies, customs or other duties, assessments, charges, liens, and all additional charges, interest, penalties, expenses, claims or encumbrances upon or relating to (i) the Collateral, (ii) the Obligations, (iii) the employees, payroll, income or gross receipts of any Credit Party, (iv) the ownership or use of any assets by any Credit Party, or (v) any other aspect of any Credit Party's business. "Chattel Paper" means all "chattel paper," as such term is defined in the Code, including electronic chattel paper, now owned or hereafter acquired by any Person. "Closing Date" means the Business Day on which the conditions precedent set forth in Section 2 have been satisfied or specifically waived in writing by Lender, and the initial Loan has been made. "Closing Date Stockholder Loan" has the meaning assigned to it in Section 2.1(e). "Closing Fee" has the meaning assigned to it in Schedule E. "Code" means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, Lender's Lien on any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term "Code" means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions of this Agreement relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions; provided further, that to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern. "Collateral" has the meaning assigned to it in Section 6.1. "Collection Account" means that certain account of Lender, account number 50-232-854 in the name of GECC-CAF Depository at Deutsche Bank Trust Company Americas, 60 Wall Street, New York, New York, ABA number 021-001-033. "Commitment Letter" has the meaning assigned to it in Section 2.1(j). "Commitment Termination Date" means the earliest of (i) the Stated Expiry Date, (ii) the date Lender's obligation to advance funds is terminated pursuant to Section 7.2, and (iii) the date of indefeasible prepayment in full by Borrowers of the Obligations in accordance with the provisions of Section 1.2(c). "Contracts" means all the contracts, undertakings, or agreements (other than rights evidenced by Chattel Paper, Documents or Instruments) in or under which any Person may now or hereafter have any right, title or interest, including any agreement relating to the terms of payment or the terms of performance of any Account. "Contractual Obligation" means as to any Person, any provision of any security issued by such Person or of any agreement, instrument, or other undertaking to which such Person is a party or by which it or any of its property is bound. "Copyright License" means rights under any written agreement now owned or hereafter acquired by any Person granting the right to use any Copyright or Copyright registration. 35 "Copyrights" means all of the following now owned or hereafter adopted or acquired by any Person: (i) all copyrights in any original work of authorship fixed in any tangible medium of expression, now known or later developed, all registrations and applications for registration of any such copyrights in the United States or any other country, including registrations, recordings and applications, and supplemental registrations, recordings, and applications in the United States Copyright Office; and (ii) all Proceeds of the foregoing, including license royalties and proceeds of infringement suits, the right to sue for past, present and future infringements, all rights corresponding thereto throughout the world and all renewals and extensions thereof. "Corporate Credit Party" means any Credit Party that is a corporation, partnership or limited liability company. "Credit Party" means each Borrower, and each other Person (other than Lender) that is or may become a party to this Agreement or any other Loan Document. "Default" means any Event of Default or any event that, with the passage of time or notice or both, would, unless cured or waived, become an Event of Default. "Default Rate" has the meaning assigned to it in Section 1.5(c). "Deposit Accounts" means all "deposit accounts" as such term is defined in the Code, now or hereafter held in the name of any Person, including, without limitation, all bank accounts and funds on deposit therein. "Documents" means all "documents," as such term is defined in the Code, now owned or hereafter acquired by any Person, wherever located, including all bills of lading, dock warrants, dock receipts, warehouse receipts, and other documents of title, whether negotiable or non-negotiable. "EBITDA" means, for any period, the Net Income (Loss) of Borrowers and their Subsidiaries on a consolidated basis for such period, plus interest expense, income tax expense, amortization expense, depreciation expense and extraordinary losses and minus extraordinary gains, in each case, of Borrowers and their Subsidiaries on a consolidated basis for such period determined in accordance with GAAP to the extent included in the determination of such Net Income (Loss). For purposes of calculating the Fixed Charge Coverage Ratio through December 31, 2004, (a) the following amounts shall be added to EBITDA: (i) up to $267,000 for non-recurring going private costs incurred in the Fiscal Quarter ending June 30, 2003, (ii) up to $434,000 for actual cash expenditures for non-recurring California relocation expenses incurred through September 30, 2003, (iii) all accruals for non-recurring California relocation expenses, and (iv) up to $259,000 for non-recurring write-offs of the investment in Sparks Europe B.V., and (b) the following amount shall be subtracted from EBITDA: all actual cash expenditures made with respect to such accruals for non-recurring California relocation expenses made after September 30, 2003. "El Cajon Lease" means that certain Lease Agreement dated on or about June 29, 1998 between Gillespie Field Partners, LLC and Second Borrower, as amended by that certain First Amendment to Lease Agreement dated October 31, 2003, for the premises located at 2025 Gillespie Way, El Cajon, California 92020. "Eligible Accounts" means as at the date of determination with respect to any Borrower, all Accounts of such Borrower except any Account: (a) that does not arise from the sale of goods or the performance of services by such Borrower in the ordinary course of such Borrower's business; (b) upon which (i) such Borrower's right to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever or (ii) such Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process; (c) against which any defense, counterclaim or setoff, whether well-founded or otherwise, is asserted or which is a "contra" Account; 36 (d) that is not a true and correct statement of a bona fide indebtedness incurred in the amount of the Account for merchandise sold or services performed and accepted by the Account Debtor obligated upon such Account; (e) with respect to which an invoice, acceptable to Lender in form and substance, has not been sent; (f) that is not owned by such Borrower or is subject to any right, claim, or interest of another Person, other than the Lien in favor of Lender; (g) that arises from a sale to or performance of services for an employee, Affiliate, Subsidiary or Stockholder of any Borrower or any other Credit Party, or an entity which has common officers or directors with any Borrower or any other Credit Party; (h) that is the obligation of an Account Debtor that is the Federal (or local) government or a political subdivision thereof, unless Lender has agreed to the contrary in writing and such Borrower has complied with the Federal Assignment of Claims Act of 1940 (or the state equivalent thereof, if any) with respect to such obligation; (i) that is the obligation of an Account Debtor located in a foreign country unless such Account is supported by a letter of credit in which Lender has a first priority perfected security interest by control or credit insurance acceptable to Lender (and naming Lender as loss payee); (j) that is the obligation of an Account Debtor to whom any Borrower is or may become liable for goods sold or services rendered by the Account Debtor to any Borrower, to the extent of any Borrower's liability to such Account Debtor; (k) that arises with respect to goods which are delivered on a cash-on-delivery basis or placed on consignment, guaranteed sale or other terms by reason of which the payment by the Account Debtor may be conditional; (l) that is an obligation for which the total unpaid Accounts of the Account Debtor exceed 20% of the aggregate of all Accounts, to the extent of such excess; (m) that is not paid within 60 days from its due date or 120 days from its invoice date 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; (n) is an obligation of an Account Debtor that has suspended business, made a general assignment for the benefit of creditors, is unable to pay its debts as they become due or as to which a petition has been filed (voluntary or involuntary) under any law relating to bankruptcy, insolvency, reorganization or relief of debtors; (o) that arises from any bill-and-hold or other sale of goods which remain in any Borrower's possession or under any Borrower's control, unless Lender receives a bill-and-hold letter or other agreement from the Account Debtor in form and substance satisfactory to Lender in its sole discretion; (p) as to which Lender's interest therein is not a first priority perfected security interest; (q) to the extent that such Account exceeds any credit limit established by Lender in Lender's good faith credit judgment; (r) as to which any of such Borrower's representations or warranties pertaining to Accounts are untrue; (s) that represents interest payments, late or finance charges, or service charges owing to such Borrower; or 37 (t) that is not otherwise acceptable in the good faith discretion of Lender, provided, that Lender shall have the right to create and adjust eligibility standards and related reserves from time to time in its good faith credit judgment. "Eligible Inventory" means as at the date of determination as to any Borrower, all Inventory of such Borrower, except any Inventory that: (a) is not subject to a first priority perfected security interest of Lender or is not owned by such Borrower free and clear of all Liens and rights of others (except the Liens in favor of Lender); (b) is not located on premises (i) owned or operated by such Borrower and referenced in Disclosure Schedule (3.2) or (ii) of a vendor which has, together with such vendor's lender, signed a vendor letter in form and substance satisfactory to Lender in its sole discretion; provided, however, that Lender acknowledges that the seven (7) vendor's letters received by Lender as of the Closing Date are all satisfactory; (c ) is not located on premises where the aggregate amount of all Inventory (valued at cost) of such Borrower located thereon is greater than $50,000; (d) is located on premises with respect to which Lender has not received a landlord, vendor or mortgagee letter acceptable in form and substance to Lender; (e) is in transit; (f) is covered by a negotiable document of title, unless such document and evidence of acceptable insurance covering such Inventory has been delivered to Lender, (g) in Lender's good faith credit judgment, is obsolete, unsalable, shopworn, damaged, unfit for further processing, is of substandard quality or is not of good and merchantable quality, free from any defects; (h) consists of (i) discontinued items, (ii) slow-moving or excess items held in inventory, or (iii) used items held for resale; (i) does not consist of (i) raw materials or (ii) finished goods that (A) are backed by purchase orders and/or contracts with "take or pay" provisions satisfactory to Lender in its sole discretion, and (B) have shipping orders for delivery fewer than 120 days from the date such finished goods were completed; (j) does not meet all standards imposed by any Governmental Authority, including with respect to its production, acquisition or importation (as the case may be); (k) is placed by such Borrower on consignment or held by such Borrower on consignment from another Person; (l) is held for rental or lease by or on behalf of such Borrower; (m) is produced in violation of the Fair Labor Standards Act and subject to the "hot goods" provisions contained in 29 U.S.C. ss. 215 or any successor statute or section; (n) in any way fails to meet or violates any warranty, representation or covenant contained in this Agreement or any other Loan Document; (o) is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third parties, unless subject to a purchase order from a customer that owns, or has the right to use, such patent, trademark, trade name or copyright; (p) requires the consent of any Person for the completion of manufacture, sale or other disposition of such Inventory by Lender following an Event of Default and such completion, manufacture or sale constitutes a breach 38 or default under any contract or agreement to which such Borrower is a party or to which such Inventory is or may become subject; or (q) is not otherwise acceptable in the good faith discretion of Lender, provided, that Lender shall have the right to create and adjust eligibility standards and related reserves from time to time in its good faith credit judgment. "Eligible Shipped/Unbilled Assets" means as at the date of determination with respect to any Borrower, all Shipped/Unbilled Assets which would be Eligible Accounts but for clause (e), but only to the extent that an invoice, acceptable to Lender in form and substance, has been sent within forty (40) days of the applicable shipping date. "Environmental Laws" means all Federal, state and local laws, statutes, ordinances and regulations, now or hereafter in effect, and in each case as amended or supplemented from time to time, and any applicable judicial or administrative interpretation thereof relating to the regulation and protection of human health, safety, the environment and natural resources (including ambient air, surface water, groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic species and vegetation). "Environmental Liabilities" means all liabilities, obligations, responsibilities, remedial actions, removal costs, losses, damages of whatever nature, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim, suit, action or demand of whatever nature by any Person, and which relate to any health or safety condition regulated under any Environmental Law, environmental permits or in connection with any Release, threatened Release, or the presence of a Hazardous Material. "Equipment" means all "equipment" as such term is defined in the Code, now owned or hereafter acquired by any Person, wherever located, including any and all machinery, apparatus, equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal property (other than Inventory) of every kind and description that may be now or hereafter used in such Person's operations or that are owned by such Person or in which such Person may have an interest, and all parts, accessories and accessions thereto and substitutions and replacements therefore. "ERISA" means the Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended from time to time, and any regulations promulgated thereunder. "ERISA Affiliate" means any trade or business (whether or not incorporated) that, together with any Credit Party, is treated as a single employer under Section 414(b), (c), (m) or (o) of the IRC, or, solely for the purposes of Section 302 of ERISA and Section 412 of the IRC, is treated as a single employer under Section 414 of the IRC. "ERISA Event" means (a) any "reportable event," as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an "accumulated funding deficiency" (as defined in Section 412 of the IRC or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(b) of the IRC or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Credit Party or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Credit Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan; (f) the incurrence by any Credit Party or any ERISA Affiliate of any liability with respect to any withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by any Credit Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Credit Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA. "Event of Default" has the meaning assigned to it in Section 7.1. "Fees" means the fees due to Lender as set forth in Schedule E. 39 "Financial Statements" means the (a) consolidated and consolidating income statement, balance sheet and statement of cash flows of Marlton and its Subsidiaries, internally prepared for each Fiscal Month in accordance with GAAP (except for the absence of footnotes and accountant-recommended adjustments), and (b) consolidated income statement, balance sheet and statement of cash flows of Marlton and its Subsidiaries, audited for each Fiscal Year (including any management letter), together with internally-prepared consolidating back-up, all prepared in accordance with GAAP. "First Adjustment Date" has the meaning assigned to it in Section 1.5(a). "Fiscal Month" means any of the monthly accounting periods of Borrowers. "Fiscal Quarter" means any of the quarterly accounting periods of Borrowers. "Fiscal Year" means the 12-month period of Borrowers ending December 31 of each year. Subsequent changes of the fiscal year of Borrowers shall not change the term "Fiscal Year" unless Lender shall consent in writing to such change. "Fixed Charge Coverage Ratio" means, for any period, the ratio of the following for Marlton and its Subsidiaries on a consolidated basis determined in accordance with GAAP: (a) EBITDA for such period less Capital Expenditures for such period which are not financed through the incurrence of any Indebtedness (excluding the Revolving Credit Loan) to (b) the sum of, without duplication, (i) interest expense paid or accrued in respect of any Indebtedness during such period, plus (ii) taxes to the extent payable with respect to such period plus (iii) regularly scheduled payments of principal paid or that were required to be paid on Funded Debt (excluding the Revolving Credit Loan and permitted repayments of Stockholder Loans) during such period plus (iv) dividends or other distributions paid to Stockholders during such period. "Fixtures" means all "fixtures" as such term is defined in the Code, now owned or hereafter acquired by any Person. "Funded Debt" means, for any Person, all of such Person's Indebtedness which by the terms of the agreement governing or instrument evidencing such Indebtedness matures more than one year from, or is directly or indirectly renewable or extendible at the option of such Person under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of more than one year from, the date of creation thereof, including current maturities of long-term debt, revolving credit, and short-term debt extendible beyond one year at the option of such Person. "GAAP" means generally accepted accounting principles in the United States of America as in effect from time to time, consistently applied. "General Intangibles" means all "general intangibles," as such term is defined in the Code, now owned or hereafter acquired by any Person, including all right, title and interest that such Person may now or hereafter have in or under any Contract, all Payment Intangibles, customer lists, Licenses, Intellectual Property, interests in partnerships, joint ventures and other business associations, permits, proprietary or confidential information, inventions (whether or not patented or patentable), technical information, procedures, designs, knowledge, know-how, software, data bases, data, skill, expertise, experience, processes, models, drawings, materials, Books and Records, Goodwill (including the Goodwill associated with any Intellectual Property), all rights and claims in or under insurance policies (including insurance for fire, damage, loss, and casualty, whether covering personal property, real property, tangible rights or intangible rights, all liability, life, key-person, and business interruption insurance, and all unearned premiums), uncertificated securities, choses in action, deposit accounts, rights to receive tax refunds and other payments, rights to received dividends, distributions, cash, Instruments and other property in respect of or in exchange for pledged Stock and Investment Property, and rights of indemnification. "Goods" means all "goods," as such term is defined in the Code, now owned or hereafter acquired by any Person, wherever located, including embedded software to the extent included in "goods" as defined in the Code, manufactured homes, standing timber that is cut and removed for sale and unborn young of animals. 40 "Goodwill" means all goodwill, trade secrets, proprietary or confidential information, technical information, procedures, formulae, quality control standards, designs, operating and training manuals, customer lists, and distribution agreements now owned or hereafter acquired by any Person. "Governmental Authority" means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "Guaranteed Indebtedness" means, as to any Person, any obligation of such Person guaranteeing any indebtedness, lease, dividend, or other obligation ("primary obligations") of any other Person (the "primary obligor") in any manner, including any obligation or arrangement of such guaranteeing Person (whether or not contingent): (i) to purchase or repurchase any such primary obligation; (ii) to advance or supply funds (a) for the purchase or payment of any such primary obligation or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet condition of the primary obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; or (iv) to indemnify the owner of such primary obligation against loss in respect thereof. "Guarantor" means each Person that executes a guaranty or a support, put or other similar agreement in favor of Lender in connection with the transactions contemplated by this Agreement. "Guaranty" means any agreement to perform all or any portion of the Obligations on behalf of Borrowers or any other Credit Party, in favor of, and in form and substance satisfactory to, Lender, together with all amendments, modifications and supplements thereto, and shall refer to such Guaranty as the same may be in effect at the time such reference becomes operative. "Hazardous Material" means any substance, material or waste that is regulated by or forms the basis of liability now or hereafter under, any Environmental Laws, including any material or substance that is (a) defined as a "solid waste," "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste," "restricted hazardous waste," "pollutant," "contaminant," "hazardous constituent," "special waste," "toxic substance" or other similar term or phrase under any Environmental Laws, (b) petroleum or any fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCB's), or any radioactive substance. "Hazardous Waste" has the meaning ascribed to such term in the Resource Conservation and Recovery Act (42 U.S.C. ss.ss. 6901 et. seq.). "Indebtedness" of any Person means: (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (including reimbursement and all other obligations with respect to surety bonds, letters of credit and bankers' acceptances, whether or not matured, but not including obligations to trade creditors incurred in the ordinary course of business and not more than sixty (60) days past due); (ii) all obligations evidenced by notes, bonds, debentures or similar instruments; (iii) all indebtedness created or arising under any conditional sale or other title retention agreements with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (iv) all Capital Lease Obligations; (v) all Guaranteed Indebtedness; (vi) all Indebtedness referred to in clauses (i), (ii), (iii), (iv) or (v) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; (vii) the Obligations; and (viii) all liabilities under Title IV of ERISA. "Indemnified Liabilities" and "Indemnified Person" have the respective meaning assigned to them in Section 1.11. "Index Rate" means the latest rate for 30-day dealer placed commercial paper (which for purposes hereof shall mean high grade unsecured notes sold through dealers by major corporations in multiples of $1,000), which normally is published in the "Money Rates" section of The Wall Street Journal (or if such 41 rate ceases to be so published, as quoted from such other generally available and recognizable source as Lender may select). The Index Rate shall be determined (i) on the first Business Day immediately prior to the Closing Date and (ii) thereafter, on the last Business Day of each calendar month for calculation of interest for the following month. "Instruments" means all "instruments," as such term is defined in the Code, now owned or hereafter acquired by any Person, wherever located, including all certificated securities and all promissory notes and other evidences of indebtedness, other than instruments that constitute, or are a part of a group of writings that constitute, Chattel Paper. "Intellectual Property" means any and all Licenses, Patents, Copyrights, Trademarks, trade secrets and customer lists. "Inventory" means all "inventory," as such term is defined in the Code, now owned or hereafter acquired by any Person, wherever located, including all inventory, merchandise, goods and other personal property that are held by or on behalf of such Person for sale or lease or are furnished or are to be furnished under a contract of service or that constitute raw materials, work in process, finished goods, returned goods, or materials or supplies of any kind, nature or description used or consumed or to be used or consumed in such Person's business or in the processing, production, packaging, promotion, delivery or shipping of the same, including all supplies and embedded software. "Investment Property" means all "investment property," as such term is defined in the Code, now owned or hereafter acquired by any Person, wherever located. "IRC" and "IRS" mean respectively, the Internal Revenue Code of 1986 and the Internal Revenue Service, and any successors thereto. "Lender" means General Electric Capital Corporation and, if at any time Lender shall decide to assign or syndicate all or any of the Obligations, such term shall include such assignee or such other members of the syndicate. "Letters of Credit" means any and all documentary or standby letters of credit issued at the request and for the account of any Borrower for which Lender has incurred Letter of Credit Obligations. "Letter of Credit Fee" has the meaning assigned to it in Schedule E. "Letter of Credit Obligations" means all outstanding obligations (including all duty, freight, taxes, costs, insurance and any other charges and expenses) incurred by Lender, whether direct or indirect, contingent or otherwise, due or not due, in connection with the issuance or guarantee, by Lender or arranged by Lender, of Letters of Credit, all as further set forth in Schedule C. "Letter-of-Credit Rights" means "letter-of-credit rights" as such term is defined in the Code, now owned or hereafter acquired by any Person, including rights to payment or performance under a letter of credit, whether or not such Person, as beneficiary, has demanded or is entitled to demand payment or performance. "License" means any Copyright License, Patent License, Trademark License or other license of rights or interests now held or hereafter acquired by any Person. "Lien" means any mortgage, security deed or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, security title, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the Code or comparable law of any jurisdiction). "Litigation" means any claim, lawsuit, litigation, investigation or proceeding of or before any arbitrator or Governmental Authority. "Loan Documents" means this Agreement, the Notes, the Financial Statements, each Guaranty, the Powers of Attorney, the Blocked Account Agreements, and the other 42 documents and instruments listed in Schedule F, and all security agreements, mortgages and all other documents, instruments, certificates, and notices at any time delivered by any Person (other than Lender) in connection with any of the foregoing. "Loans" means the Revolving Credit Loan including the Letter of Credit Obligations. "Lock Box" has the meanings assigned to such term in Schedule D. "Marlton" means Marlton Technologies, Inc. "Material Adverse Effect" means: (i) a material adverse effect on (a) the business, assets, operations, prospects or financial or other condition of the Borrowers and the other Credit Parties signatory to this Agreement, taken as a whole, or the industry within which the Borrowers and such Credit Parties, taken as a whole, operates, (b) the Borrowers' and such Credit Parties' ability, taken as a whole, to pay or perform the Obligations under the Loan Documents to which such Credit Parties are a signatory in accordance with the terms thereof, (c) the Collateral or Lender's Liens on the Collateral or the priority of any such Lien, or (d) Lender's rights and remedies under this Agreement and the other Loan Documents. "Maximum Amount" means $12,000,000. "Minimum Actionable Amount" means $150,000. "Multiemployer Plan" means a "multiemployer plan," as defined in Section 4001(a) (3) of ERISA, to which Borrower, any other Credit Party or any ERISA Affiliate is making, is obligated to make, has made or been obligated to make, contributions on behalf of participants who are or were employed by any of them. "Net Borrowing Availability" means at any time with respect to any Borrower, such Borrower's Borrowing Availability less the Revolving Credit Loan attributable to such Borrower. "Net Income (Loss)" means with respect to any Person and for any period, the aggregate net income (or loss) after taxes of such Person for such period, determined in accordance with GAAP. "Notes" means the Revolving Credit Notes. "Notice of Revolving Credit Advance" has the meaning assigned to it in Section 1.1(b). "Obligations" means all loans, advances, debts, expense reimbursement, fees, liabilities, and obligations for the performance of covenants, tasks or duties or for payment of monetary amounts (whether or not such performance is then required or contingent, or amounts are liquidated or determinable) owing by any Borrower and any other Credit Party to Lender, of any kind or nature, present or future, whether or not evidenced by any note, agreement or other instrument arising under any of the Loan Documents, and all covenants and duties regarding such amounts. This term includes all principal, interest (including interest accruing at the then applicable rate provided in this Agreement after the maturity of the Loans and interest accruing at the then applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), Fees, Charges, expenses, attorneys' fees and any other sum chargeable to any Borrower under any of the Loan Documents, and all principal and interest due in respect of the Loans and all obligations and liabilities of any Guarantor under any Guaranty. "Patent License" means rights under any written agreement now owned or hereafter acquired by any Person granting any right with respect to any invention on which a Patent is in existence. "Patents" means all of the following in which any Person now holds or hereafter acquires any interest: (i) all letters patent of the United States or any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or any other country, including registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any 43 State or Territory thereof, or any other country; and (ii) all reissues, continuations, continuations-in-part or extensions thereof. "Payment Intangibles" means all "payment intangibles" as such term is defined in the Code, now owned or hereafter acquired by any Person. "PBGC" means the Pension Benefit Guaranty Corporation or any successor thereto. "Permitted Encumbrances" means the following encumbrances: (i) Liens for taxes or assessments or other governmental Charges or levies, either not yet due and payable or to the extent that nonpayment thereof is permitted by the terms of Section 3.10; (ii) pledges or deposits securing obligations under worker's compensation, unemployment insurance, social security or public liability laws or similar legislation; (iii) pledges or deposits securing bids, tenders, contracts (other than contracts for the payment of money) or leases to which any Credit Party is a party as lessee made in the ordinary course of business; (iv) deposits securing public or statutory obligations of any Credit Party; (v) inchoate and unperfected workers', mechanics', or similar liens arising in the ordinary course of business so long as such Liens attach only to Equipment, fixtures or real estate; (vi) carriers', warehouseman's', suppliers' or other similar possessory liens arising in the ordinary course of business and securing indebtedness not yet due and payable in an outstanding aggregate amount not in excess of $100,000 at any time so long as such Liens attach only to Inventory; (vii) deposits of money securing, or in lieu of, surety, appeal or customs bonds in proceedings to which any Credit Party is a party; (viii) zoning restrictions, easements, licenses, or other restrictions on the use of real property or other minor irregularities in title (including leasehold title) thereto, so long as the same do not materially impair the use, value, or marketability of such real estate; (ix) Purchase Money Liens securing Purchase Money Indebtedness (or rent) to the extent permitted under Section 5(b)(vi); (x) Liens in existence on the Closing Date as disclosed on Disclosure Schedule 5(e) provided that no such Lien covers additional property after the Closing Date and the amount of Indebtedness secured thereby is not increased; and (xi) Liens in favor of Lender securing the Obligations. "Person" means any individual, sole proprietorship, partnership, limited liability partnership, joint venture, trust, unincorporated organization, association, corporation, limited liability company, institution, public benefit corporation, entity or government (whether Federal, state, county, city, municipal or otherwise, including any instrumentality, division, agency, body or department thereof), and shall include such Person's successors and assigns. "Plan" means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the IRC or Section 302 of ERISA, and in respect of which any Credit Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA. "Prepayment Fee" means the prepayment fee specified in Schedule E. "Proceeds" means "proceeds," as such term is defined in the Code and, in any event, shall include: (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to any Borrower or any other Credit Party from time to time with respect to any Collateral; (ii) any and all payments (in any form whatsoever) made or due and payable to any Borrower or any other Credit Party from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of any Collateral by any governmental body, authority, bureau or agency (or any person acting under color of governmental authority); (iii) any claim of any Borrower or any other Credit Party against third parties (a) for past, present or future infringement of any Intellectual Property or (b) for past, present or future infringement or dilution of any Trademark or Trademark License or for injury to the goodwill associated with any Trademark, Trademark registration or Trademark licensed under any Trademark License; (iv) any recoveries by any Borrower or any other Credit Party against third parties with respect to any litigation or dispute concerning any Collateral, including claims arising out of the loss or nonconformity of, interference with the use of, defects in, or infringement of rights in, or damage to, Collateral; (v) all amounts collected on, or distributed on account of, other Collateral, including dividends, interest, distributions and Instruments with respect to Investment Property and pledged Stock; and (vi) any and all other amounts, rights to payment or other property acquired upon the sale, lease, license, exchange or other disposition of Collateral and all rights arising out of Collateral. 44 "Projections" means as of any date the consolidated and consolidating balance sheet, statements of income and cash flow for Marlton and its Subsidiaries (including forecasted Capital Expenditures and Net Borrowing Availability) by quarter for the next Fiscal Year, in each case prepared in a manner consistent with the initial Projections delivered to Lender on or before the Closing Date and accompanied by senior management's discussion and analysis of such plan. "Purchase Money Indebtedness" means (i) any Indebtedness incurred for the payment of all or any part of the purchase price of any fixed asset, (ii) any Indebtedness incurred for the sole purpose of financing or refinancing all or any part of the purchase price of any fixed asset, and (iii) any renewals, extensions or refinancings thereof (but not any increases in the principal amounts thereof outstanding at that time). "Purchase Money Lien" means any Lien upon any fixed assets that secures the Purchase Money Indebtedness related thereto but only if such Lien shall at all times be confined solely to the asset the purchase price of which was financed or refinanced through the incurrence of the Purchase Money Indebtedness secured by such Lien and only if such Lien secures only such Purchase Money Indebtedness. "Real Property" has the meaning assigned to it in Section 3.15. "Release" means, as to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials in the indoor or outdoor environment by such Person, including the movement of Hazardous Materials through or in the air, soil, surface water, ground water or property. "Requirement of Law" means as to any Person, the Certificate or Articles of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case binding upon such Person or any of its property or to which such Person or any of its property is subject. "Restricted Payment" means: (i) the declaration or payment of any dividend or the incurrence of any liability to make any other payment or distribution of cash or other property or assets on or in respect of any Borrower's or any other Credit Party's Stock; (ii) any payment or distribution made in respect of any subordinated Indebtedness of any Borrower or any other Credit Party in violation of any subordination or other agreement made in favor of Lender; (iii) any payment on account of the purchase, redemption, defeasance or other retirement of any Borrower's or any other Credit Party's Stock or Indebtedness or any other payment or distribution made in respect of any thereof, either directly or indirectly; other than (a) that arising under this Agreement or (b) interest and principal, when due without acceleration or modification of the amortization as in effect on the Closing Date, under Indebtedness (not including subordinated Indebtedness, payments of which shall be permitted only in accordance with the terms of the relevant subordination agreement made in favor of Lender) described in Disclosure Schedule (5(b)) or otherwise permitted under Section 5(b)(vi); or (iv) any payment, loan, contribution, or other transfer of funds or other property to any Stockholder of such Person which is not expressly and specifically permitted in this Agreement; provided, that no payment to Lender shall constitute a Restricted Payment. "Revolving Credit Advance" has the meaning assigned to it in Section 1.1(a). "Revolving Credit Loan" means at any time the sum of (i) the aggregate amount of Revolving Credit Advances then outstanding, plus (ii) the total Letter of Credit Obligations incurred by Lender and outstanding at such time, plus (iii) the amount of accrued but unpaid interest thereon and Letter of Credit Fees with respect thereto. "Revolving Credit Note" means each promissory note dated the Closing Date, executed by a Borrower substantially in the form of Exhibit F. "Revolving Credit Rate" has the meaning assigned to it in Section 1.5(a). "SEC" means the Securities and Exchange Commission. "SEEC" means Sparks Exhibits & Environments Company, an Illinois corporation. 45 "SEEI" means Sparks Exhibits & Environments Incorporated, a Florida corporation. "Shipped/Unbilled Assets" means all assets consisting of trade show exhibits that have been shipped and used at trade shows, and all services related thereto, but which have not yet been billed. "Software" means all "software" as such term is defined in the Code, now owned or hereafter acquired by any Person, including all computer programs and all supporting information provided in connection with a transaction related to any program. "Solvent" means, with respect to any Person on a particular date, that on such date (a) the fair value of the tangible and intangible property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person; (b) the present fair salable value of the tangible and intangible assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person' s ability to pay as such debts and liabilities mature; and (d) such Person is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which such Person's property would constitute an unreasonably small capital. The amount of contingent liabilities (such as litigation, guarantees and pension plan liabilities) at any time shall be computed as the amount which, in light of all the facts and circumstances existing at the time, represents the net present value of the amount which can be reasonably be expected to become an actual or matured liability. "Sparks Holding" shall mean Sparks Exhibits Holding Corporation. "Special Reserve" shall mean that certain reserve established against Borrowing Availability on the Closing Date in the amount of $500,000; provided, however, that for each Fiscal Quarter, commencing with the Fiscal Quarter ending March 31, 2004, in which (a) no Event of Default has occurred and is continuing, and (b) Marlton and its Subsidiaries on a consolidated basis have a Fixed Charge Coverage Ratio for such Fiscal Quarter of not less than 1.10:1.0 on a Fiscal Year-to-date basis, Lender will release $100,000 from the Special Reserve for such Fiscal Quarter, such release to occur within fifteen (15) days of Lender's receipt from Borrowers of the Financial Statements and the covenant compliance certification required under Section 4.1(d) for the last month of such Fiscal Quarter. "Stated Expiry Date" means February 6, 2007. "Stock" means all certificated and uncertificated shares, options, warrants, membership interests, general or limited partnership interests, participation or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock, or any other "equity security" (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934). "Stockholder" means each holder of Stock of any Borrower or any other Credit Party. "Stockholder Loans" has the meaning assigned to it in Section 3.22. "Subsidiary" means, with respect to any Person, (i) any corporation of which an aggregate of more than 50% of the outstanding Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, Stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by such Person and/or one or more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of 50% or more of such Stock whether by proxy, agreement, operation of law or otherwise, and (ii) any partnership or limited liability company in which such Person or one or more Subsidiaries of such Person has an equity interest (whether in the form of voting or participation in profits or capital contribution) of more than 50% or of which any such Person is a general partner or manager or may exercise the powers of a general partner or manager. 46 "Supporting Obligations" means all "supporting obligations" as such term is defined in the Code, including letters of credit and guaranties issued in support of Accounts, Chattel Paper, Documents, General Intangibles, Instruments, or Investment Property. "Taxes" means taxes, levies, imposts, deductions, Charges or withholdings, and all liabilities with respect thereto, excluding taxes imposed on or measured by the net income of Lender. "Termination Date" means the date on which all Obligations under this Agreement are indefeasibly paid in full, in cash (other than amounts in respect of Letter of Credit Obligations if any, then outstanding, provided that Borrowers shall have funded such amounts in cash in full into the Cash Collateral Account), and Borrowers shall have no further right to borrow any moneys or obtain other credit extensions or financial accommodations under this Agreement. "Trademark License" means rights under any written agreement now owned or hereafter acquired by any Person granting any right to use any Trademark or Trademark registration. "Trademarks" means all of the following now owned or hereafter adopted or acquired by any Person: (i) all trademarks, trade names, corporate names, business names, trade styles, service marks, logos, other source or business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of like nature (whether registered or unregistered), all registrations and recordings thereof, and all applications in connection therewith, including all registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State or Territory thereof, or any other country or any political subdivision thereof; and (ii) all reissues, extensions or renewals thereof; and (iii) all goodwill associated with or symbolized by any of the foregoing. "Unused Line Fee" has the meaning assigned to it in Schedule E. "Withdrawal Liability" means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA. Any accounting term used in this Agreement or the other Loan Documents shall have, unless otherwise specifically provided therein, the meaning customarily given such term in accordance with GAAP, and all financial computations thereunder shall be computed, unless otherwise specifically provided therein, in accordance with GAAP consistently applied; provided, that all financial covenants and calculations in the Loan Documents shall be made in accordance with GAAP as in effect on the Closing Date unless Borrower and Lender shall otherwise specifically agree in writing herein or hereafter. That certain items or computations are explicitly modified by the phrase "in accordance with GAAP" shall in no way be construed to limit the foregoing. All other undefined terms contained in this Agreement or the other Loan Documents shall, unless the context indicates otherwise, have the meanings provided for by the Code. The words "herein," "hereof" and "hereunder" or other words of similar import refer to this Agreement as a whole, including the exhibits and schedules thereto, as the same may from time to time be amended, modified or supplemented, and not to any particular section, subsection or clause contained in this Agreement. For purposes of this Agreement and the other Loan Documents, the following additional rules of construction shall apply, unless specifically indicated to the contrary: (a) wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural; (b) the term "or" is not exclusive; (c) the term "including" (or any form thereof) shall not be limiting or exclusive; (d) all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations; and (e) all references to any instruments or agreements, including references to any of the Loan Documents, shall include any and all modifications or amendments thereto and any and all extensions or renewals thereof. 47 SCHEDULE B Lender's And Borrowers' Addresses For Notices Lender's Address: Name: General Electric Capital Corporation Address: 83 Wooster Heights Road Danbury, CT 06810 Att'n: Marlton Technologies, Inc. - Account Manager Telephone: 203-205-5241 Facsimile: 203-205-5230 Leading Borrower's Address (as Agent for each Borrower): Name: Sparks Exhibits & Environments Corp. Address: 2828 Charter Road Philadelphia, PA 19154 Att'n: Stephen Rolf, Treasurer Telephone: 215-602-8073 Facsimile: 215-602-8023 48 Schedule C Letters of Credit 1. Lender agrees, subject to the terms and conditions hereinafter set forth, to incur Letter of Credit Obligations in respect of the issuance of Letters of Credit issued on the issuing bank's usual and customary terms and otherwise reasonably acceptable to Lender and supporting obligations of each Borrower incurred in the ordinary course of such Borrower's business, in order to support the payment of such Borrower's inventory purchase obligations, insurance premiums, security deposits, or utility or other operating expenses and obligations, as Leading Borrower shall request as agent for such Borrower by written notice to Lender that is received by Lender not less than five Business Days prior to the requested date of issuance of any such Letter of Credit; provided, that: (a) that the aggregate amount of all Letter of Credit Obligations in favor of the Borrowers at any one time outstanding (whether or not then due and payable) shall not exceed $3,000,000; (b) no Letter of Credit shall have an expiry date which is later than the Stated Expiry Date or one year following the date of issuance thereof; and (c) Lender shall be under no obligation to incur any Letter of Credit Obligation for the account of any Borrower if after giving effect to the incurrence of such Letter of Credit Obligation, the Net Borrowing Availability of such Borrower would be less than zero. The maximum amount payable in respect of each Letter of Credit requested by any Borrower will be guaranteed by Lender in favor of the issuing bank under terms of a separate agreement between Lender and the issuing bank. Each Borrower will enter into an application and agreement for such Letter of Credit with the issuing bank selected by Lender (which may be an Affiliate of Lender). The bank that issues any Letter of Credit pursuant to this Agreement shall be determined by Lender in its sole discretion. 2. The notice to be provided to Lender requesting that Lender incur Letter of Credit Obligations shall be in the form of a Letter of Credit application in the form customarily employed by the issuing bank, together with a written request by the applicable Borrower and the bank that Lender approve such Borrower's application. Upon receipt of such notice Lender shall establish a reserve against such Borrower's Borrowing Availability in the amount of 100% of the face amount of the Letter of Credit Obligation to be incurred. Approval by Lender in the written form agreed upon between Lender and the issuing bank (a) will authorize the bank to issue the requested Letter of Credit, and (b) will conclusively establish the existence of the Letter of Credit Obligation as of the date of such approval. 3. In the event that Lender shall make any payment on or pursuant to any Letter of Credit Obligation, Borrowers shall be unconditionally obligated to reimburse Lender therefor, and such payment shall then be deemed to constitute a Revolving Credit Advance in favor of such Borrower. For purposes of computing interest under Section 1.5, a Revolving Credit Advance made in satisfaction of a Letter of Credit Obligation shall be deemed to have been made as of the date on which the issuer or endorser makes the related payment under the underlying Letter of Credit. 4. In the event that any Letter of Credit Obligations, whether or not then due or payable, shall for any reason be outstanding on the Commitment Termination Date, the applicable Borrower will either (a) cause the underlying Letter of Credit to be returned and canceled and each corresponding Letter of Credit Obligation to be terminated, or (b) pay to Lender, in immediately available funds, an amount equal to 105% of the maximum amount then available to be drawn under all Letters of Credit in favor of such Borrower not so returned and canceled to be held by Lender as cash collateral in an account under the exclusive dominion and control of Lender (the "Cash Collateral Account"). 5. In the event that Lender shall incur any Letter of Credit Obligations in favor of any Borrower, such Borrower agrees to pay the Letter of Credit Fee to Lender as compensation to Lender for incurring such Letter of Credit Obligations. In addition, such Borrower shall reimburse Lender for all administrative and/or processing fees and charges paid by Lender on account of any such Letters of Credit or Letter of Credit Obligations to the issuing bank. 6. Each Borrower's Obligations to lender with respect to any Letter of Credit or Letter of Credit Obligation shall be evidenced by Lender's records and shall be absolute, unconditional and irrevocable and shall not be affected, modified or impaired by (a) any lack of validity or enforceability of the transactions contemplated by or related to such Letter of Credit or Letter of Credit Obligation; (b) any amendment or waiver of or consent to depart from all or any of the terms of the transactions contemplated by or related to such Letter of Credit or Letter of Credit Obligation; (c) the existence of any claim, set-off, defense or other right which any Borrower or any other Credit Party may have against Lender, the issuer or beneficiary of such Letter of Credit, or any other Person, whether in connection with this Agreement, any other Loan Document or such Letter of Credit or the transactions contemplated thereby or any unrelated transactions; or (d) the fact that any draft, affidavit, letter, certificate, 49 invoice, bill of lading or other document presented under or delivered in connection with such Letter of Credit or any other Letter of Credit proves to have been forged, fraudulent, invalid or insufficient in any respect or any statement therein proves to have been untrue or incorrect in any respect. 7. In addition to any other indemnity obligations which any Borrower may have to Lender under this Agreement and without limiting such other indemnification provisions, each Borrower hereby agrees to indemnify Lender from and to hold Lender harmless against any and all claims, liabilities, losses, costs and expenses (including, attorneys' fees and expenses) which Lender may (other than as a result of its own gross negligence or willful misconduct) incur or be subject to as a consequence, directly or indirectly, of (a) the issuance of or payment of or failure to pay under any Letter of Credit or Letter of Credit Obligation or (b) any suit, investigation or proceeding as to which Lender is or may become a party as a consequence, directly or indirectly, of the issuance of any Letter of Credit, the incurring of any Letter of Credit Obligation or any payment of or failure to pay under any Letter of Credit or Letter of Credit Obligation. The obligations of each Borrower under this paragraph shall survive any termination of this Agreement and the payment in full of the Obligations. 8. Each Borrower hereby assumes all risks of the acts, omissions or misuse of each Letter of Credit by the beneficiary or issuer thereof and, in connection therewith, Lender shall not be responsible (a) for the validity, sufficiency, genuineness or legal effect of any document submitted in connection with any drawing under any Letter of Credit even if it should in fact prove in any respect to be invalid, insufficient, inaccurate, untrue, fraudulent or forged; (b) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or any rights or benefits thereunder or any proceeds thereof, in whole or in part, even if it should prove to be invalid or ineffective for any reason; (c) for the failure of any issuer or beneficiary of any Letter of Credit to comply fully with the terms thereof, including the conditions required in order to effect or pay a drawing thereunder; (d) for any errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, telecopy, telex or otherwise; (e) for any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under any Letter of Credit; or (f) for any consequences arising from causes beyond the direct control of Lender. 50 Schedule D Cash Management Borrowers agree to establish, and to maintain, until the Termination Date, the cash management system described below: 1. No Corporate Credit Party: (i) shall (nor shall it permit any of its Subsidiaries to) open or maintain any deposit, checking, operating or other bank account, or similar money handling account, with any bank or other financial institution except for those accounts identified in Attachment I hereto (to include a petty cash account not to exceed $20,000 in the aggregate for all Borrowers during any Fiscal Month, and a payroll account not to exceed an amount equal to one regular payroll at any time); and (ii) shall close or permit to be closed any of the accounts listed in Attachment I hereto, in each case without Lender's prior written consent, and then only after such Credit Party has implemented agreements with such bank or financial institution and Lender acceptable to Lender. 2. Commencing on the Closing Date and until the Termination Date, each Corporate Credit Party shall cause to be deposited directly all cash, checks, notes, drafts or other similar items relating to or constituting proceeds of or payments made in respect of any and all Collateral (a) prior to the occurrence of an Event of Default, into blocked accounts (collectively, the "Blocked Accounts") in such Credit Party's name set forth in paragraph 1 of Attachment I hereto, and (b) after the occurrence of an Event of Default, into lock boxes in Lender's name (collectively, the "Lock Boxes") . 3. On or before the Closing Date, each bank at which the Blocked Accounts are held shall have entered into tri-party blocked account agreements (the "Blocked Account Agreements") with Lender and the applicable Credit Party, in form and substance acceptable to Lender. Each such Blocked Account Agreement shall provide, among other things, (a) the terms and conditions under which the applicable Credit Party and the bank shall after the occurrence of an Event of Default enter into a lockbox agreement though which payments into the lockbox shall be processed by the bank for deposit into the Blocked Account, (b) that such bank executing such agreement has no rights of setoff or recoupment or any other claim against such Block Account or Lock Box, other than for payment of its service fees and other charges directly related to the administration of such account, and (c) that such bank agrees to sweep on a daily basis all amounts in the Blocked Account to the Collection Account. After the occurrence of an Event of Default, each bank at which a Blocked Account referred to in Section 2(a) above is established shall also execute a Lock Box Agreement with the applicable Credit Party which will establish a Lock Box as required under Section 2(b) above, which Lock Box shall become effective immediately upon execution thereof. In connection therewith, the applicable Credit Party shall, immediately upon notice from Lender, instruct all Account Debtors to remit all cash, checks, notes, drafts or other similar items relating to or constituting proceeds of or payments made in respect of any and all Collateral directly to the Lock Box, as required under Section 2(b) above. 4. On the Closing Date, (a) the blocked account and springing lock box arrangements shall immediately become operative at the banks at which the Blocked Accounts are maintained, and (b) amounts outstanding under the Revolving Credit Loan (for purposes of the Borrowing Availability) shall be reduced through daily sweeps, by wire transfer, of the Blocked Accounts into the Collection Account. Borrowers acknowledge that they shall have no right to gain access to any of the moneys in the Blocked Accounts until after the Termination Date. 5. Each Borrower may maintain, in its name, accounts (the "Disbursement Accounts") at a bank or banks reasonably acceptable to Lender into which Lender shall, from time to time, deposit proceeds of Revolving Credit Advances made pursuant to Section 1.1 for use solely in accordance with the provisions of Section 1.3. All of the Disbursement Accounts as of the Closing Date are listed in paragraph 2 of Attachment I hereto. 6. Upon the request of Lender, each Corporate Credit Party shall forward to Lender, on a daily basis, evidence of the deposit of all items of payment received by such Credit Party into the Blocked Accounts and copies of all such checks and other items, together with a statement showing the application of those items relating to payments on Accounts to outstanding Accounts and a collection report with regard thereto in form and substance satisfactory to Lender. [Attachment 1 intentionally omitted] 51 SCHEDULE E - FEES 1. UNUSED LINE FEE: For each day from the Closing Date, and through and including the Termination Date, an amount equal to (a) the Maximum Amount less, provided that no Event of Default has occurred and is continuing, the Special Reserve and all other reserves established by Lender, less (b) the Revolving Credit Loan for such day multiplied by 0.25%, the product of which is then divided by 360. The Unused Line Fee for each month (except for the month in which the Termination Date occurs) is payable on the first day of each subsequent calendar month following the Closing Date; the final monthly installment of the Unused Line Fee is payable on the Termination Date. Notwithstanding the foregoing, any unpaid Unused Line Fee is immediately due and payable on the Commitment Termination Date. 2. LETTER OF CREDIT FEE: For each day for which Lender maintains Letter of Credit Obligations outstanding, an amount equal to the amount of the Letter of Credit Obligations outstanding on such day, multiplied by 4.50%, the product of which is then divided by 360. The Letter of Credit Fee incurred for each month is payable at the same time each payment of the Unused Line Fee is due. Notwithstanding the foregoing, any unpaid Letter of Credit Fee is immediately due and payable on the Commitment Termination Date. 3. CLOSING FEE; COLLATERAL MONITORING FEE: A non-refundable closing fee of $45,000, payable and fully earned at closing (the "Closing Fee") (Lender acknowledges that Borrowers have previously paid a commitment fee in the amount of $45,000). A fully earned and non-refundable collateral monitoring fee of $24,000 per annum, payable in equal monthly installments commencing on the Closing Date and on the first day of each month thereafter; provided, however, that any unpaid Collateral Monitoring Fee shall be immediately due and payable on the Commitment Termination Date. The Collateral Monitoring Fee shall be subject to adjustment (up or down) prospectively on an annual basis as determined by the Borrowers' consolidated financial performance, commencing on the First Adjustment Date. Adjustments to the Collateral Monitoring Fee shall be in accordance with the following grid - ---------------------------------------- -------------------------------------- If the Fixed Charge Coverage Ratio for Then the annual Collateral the Immediately Preceding Fiscal Year Monitoring Fee shall be: is: - ---------------------------------------- -------------------------------------- Less than or equal to 1.25 : 1.0 $24,000 - ---------------------------------------- -------------------------------------- Greater than 1.25 : 1.0, but less than $18,000 1.50 : 1.0 - ---------------------------------------- -------------------------------------- Greater than or equal to 1.50 : 1.0 $12,000 - ---------------------------------------- -------------------------------------- All adjustments in the Collateral Monitoring Fee after the First Adjustment Date shall be implemented annually on a prospective basis, for each calendar month commencing at least five days after the date of delivery to Lender of the Borrowers' annual audited Financial Statements evidencing the need for an adjustment. Concurrently with the delivery of such Financial Statements, Borrowers shall deliver to Lender a certificate, signed by their chief financial officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Collateral Monitoring Fee. Failure to timely deliver such Financial Statements shall result in an increase in the Collateral Monitoring Fee to the highest level set forth in the foregoing grid, until the first day of the first calendar month following the delivery of those Financial Statements demonstrating that such an increase is not required. If a Default or Event of Default has occurred and is continuing at the time any reduction in the Collateral Monitoring Fee is to be implemented, that reduction shall be deferred until the first day of the first calendar month following the date on which such Default is cured to Lender's satisfaction or Event of Default is waived in writing by Lender. Additionally, if at any time any other Default or Event of Default shall have occurred and be continuing, the Collateral Monitoring Fee shall be automatically increased to the highest level set forth in the foregoing grid until the first day of the first calendar month following the date on which such Default is cured to Lender's satisfaction or Event of Default is waived in writing by Lender. The increase in the Collateral Monitoring Fee provided for in the preceding two sentences shall be in addition to any other remedy provided for in this Agreement (including Lender's right to charge the Default Rate). Any increase or decrease in the Collateral Monitoring Fee shall be done on a pro rata basis. 52 4. PREPAYMENT FEE: An amount equal to the Maximum Amount multiplied by: 3.00% if Lender's obligation to make further Revolving Credit Advances or incur additional Letter of Credit Obligations is terminated (voluntarily by Borrowers, upon Default or otherwise) on or after the Closing Date and on or before the first anniversary of the Closing Date, payable on the Commitment Termination Date; 1.50% if Lender's obligation to make further Revolving Credit Advances or incur additional Letter of Credit Obligations is terminated (voluntarily by Borrowers, upon Default or otherwise) after the first anniversary of the Closing Date and on or before the second anniversary of the Closing Date, payable on the Commitment Termination Date; or 0.50% if Lender's obligation to make further Revolving Credit Advances or incur additional Letter of Credit Obligations is terminated (voluntarily by Borrowers, upon Default or otherwise) after the second anniversary of the Closing Date and on or before the third anniversary of the Closing Date, payable on the Commitment Termination Date. Each Borrower acknowledges and agrees that (i) it would be difficult or impractical to calculate Lender's actual damages from early termination of Lender's obligation to make further Revolving Credit Advances and incur additional Letter of Credit Obligations for any reason pursuant to Section 1.2(c) or Section 7.2, (ii) the Prepayment Fees provided above are intended to be fair and reasonable approximations of such damages, and (iii) the Prepayment Fees are not intended to be penalties. Notwithstanding the foregoing, if the Borrowers repay the Obligations in full as a result of a Change of Control, the above-referenced percentages for the Prepayment Fee shall be 2.00%, 1.00% and 0.50%, respectively. 5. AUDIT FEES: Reimburse Lender at the prevailing rate (currently $750) per person per day, plus out of pocket expenses, for the audit reviews, field examinations and collateral examinations conducted by Lender. Absent the occurrence of an Event of Default, Lender shall conduct no more than five (5) audits per Fiscal Year. 53 Schedule F Schedule of Documents The obligation of Lender to make the initial Revolving Credit Advances and extend other credit is subject to satisfaction of the condition precedent that Lender shall have received the following, each, unless otherwise specified below or the context otherwise requires, dated the Closing Date, in form and substance as provided in the Agreement or otherwise satisfactory to Lender and its counsel: PRINCIPAL LOAN DOCUMENTS 1. Agreement. The Loan and Security Agreement duly executed by each Borrower. 2. Notes. Duly executed Notes from each Borrower to the order of Lender evidencing the Loans. 3. Borrowing Base Certificate. An original Borrowing Base Certificate duly executed by a responsible officer of each Borrower. 4. Notice of Revolving Credit Advance. An original Notice of Revolving Credit Advance duly executed by a responsible officer of each Borrowers. COLLATERAL DOCUMENTS. 1. Acknowledgment Copies of Financing Statements. Acknowledgment copies of proper Financing Statements (Form UCC-l) (the "Financing Statements") duly filed under the Code in all jurisdictions as may be necessary or, in the opinion of Lender, desirable to perfect Lender's Lien on the Collateral. 2. UCC Searches. Certified copies of UCC Searches, or other evidence satisfactory to Lender, listing all effective financing statements which name each Credit Party (under present name, any previous name or any trade or doing business name) as debtor and covering all jurisdictions referred to in paragraph (1) immediately above, together with copies of such other financing statements. 3. Intellectual Property Documents. Agreements relating to the granting to Lender of a security interest in Intellectual Property of each Credit Party to the extent applicable in a form suitable for filing with the appropriate Federal filing office. 4. Pledge Agreements. Agreements relating to the pledge in favor of Lender of stock and membership interests owned by Marlton, Sparks Holding and Leading Borrower. 5. Other Recordings and Filings. Evidence of the completion of all other recordings and filings (including UCC-3 termination statements and other Lien release documentation) as may be necessary or, in the opinion of and at the request of Lender, desirable to perfect Lender's Lien on the Collateral and ensure such Collateral is free and clear of other Liens.. 6. Power of Attorney. Powers of Attorney duly executed by each Credit Party executing the Agreement. THIRD PARTY AGREEMENTS. 1. Landlord, Vendor, Warehouseman and Mortgagee Consents. Unless otherwise agreed to in writing by Lender, duly executed landlord, vendor, warehouseman and mortgagee waivers and consents from the landlords, vendors, warehouseman and mortgagees of each Borrower's leased or owned locations where Collateral is held, in each case, in form and substance satisfactory to Lender. 2. Cash Management System. Duly executed Blocked Account Agreements. 54 3. Guarantees. Guarantees executed by the following Persons: (a) Marlton Technologies, Inc., (b) Sparks Exhibits Holding Corporation, (c) Sparks Exhibits & Environments Incorporated, and (d) Sparks Exhibits & Environments Company. 4 Intercreditor Agreements. Intercreditor and Subordination Agreements executed by the following Persons: N/A 5. Performance Agreement. Performance Agreement executed by the following person: Robert B. Ginsburg. 6. Assignment of Accounts Receivable Letters. Assignment of Accounts Receivable Letters duly executed in blank by each Borrower. 7. Intercompany Notes. Intercompany Notes duly executed by each Borrower, SEEC and SEEI in favor of each Borrower, in each case duly endorsed to Lender. OTHER DOCUMENTS. 1. Secretary Certificate. A Secretary Certificate in the form of Exhibit H to the Agreement duly completed and executed by the Secretary of each Credit Party executing the Agreement, together with all attachments thereto. 2. Explanation and Waiver of Rights Regarding Confession of Judgment. Explanations and Waivers of Rights Regarding Confession of Judgment duly executed by each Credit Party. 3. Environmental Audit. Copies of all existing environmental reviews and audits and other information pertaining to actual or potential environmental claims relating to the Collateral and each Borrower, as Lender may require. 4. Financial Statements and Projections. Copies of the Financial Statements and Projections, which Projections shall include a capital expenditures budget for each Borrower in form and substance reasonably satisfactory to Lender. 5. Insurance Policies. Certified copies of insurance policies described in Section 3.16, together with evidence showing loss payable or additional insured clauses or endorsements in favor of Lender. 6. Collateral Assignment of Business Interruption Insurance. A duly executed collateral assignment in favor of Lender of the proceeds of each Borrower's business interruption insurance policy. 7. Existing Lease Agreements. Copies of any existing real property leases and equipment leases to which each Borrower is a party and any other document or instrument evidencing or relating to existing Indebtedness of each Borrower, together with all certificates, opinions, instruments, security documents and other documents relating thereto, all of which shall be reasonably satisfactory in form and substance to Lender, certified by an authorized officer of each Borrower as true, correct and complete copies thereof. 55 Schedule G FINANCIAL COVENANTS 1. Fixed Charge Coverage Ratio. Marlton and its Subsidiaries on a consolidated basis shall have at the end of each Fiscal Quarter (commencing with the Fiscal Quarter ending March 31, 2004) a Fixed Charge Coverage Ratio of not less than 1.25:1.0 for the 12-month period then ended. 2. Capital Expenditures. Marlton and its Subsidiaries on a consolidated basis shall not make aggregate Capital Expenditures, other than Capital Expenditures financed through the incurrence of Indebtedness (excluding the Revolving Credit Loan) in excess of (a) $1,000,000 for Fiscal Year ending December 31, 2004, and (b) $1,250,000 for Fiscal Year ending December 31, 2005 and each Fiscal Year thereafter. 56 EX-14 6 exhibit14_codeofconduct.txt CODE OF CONDUCT EXHIBIT 14 MARLTON TECHNOLOGIES, INC. CODE OF CONDUCT March 24, 2004 I. Scope: This policy applies to all directors (to the extent of their director related duties) and employees (collectively the "Employees") of Marlton Technologies, Inc. and its majority owned subsidiaries (collectively "Marlton"), which currently include all United States Sparks Exhibits & Environments and DMS Store Fixtures subsidiaries. II. Purpose: The purpose of this code is to formalize the requirement that Employees conducting business on Marlton's behalf act in an honest and ethical manner and in a manner consistent with the standards set forth below. III. Responsibility: All Employees are responsible for being aware of the (i) standards imposed by the code and (ii) implementation of such standards. IV. Standards to be Observed: A. All Marlton business is to be conducted in compliance with applicable laws and regulations. B. Corporate funds or other resources shall not be used for gifts, favors or entertainment (collectively, the "Benefit") for government officials, purchasing agents, suppliers or other parties nor shall Employees accept a Benefit from suppliers or those with whom Marlton does business unless either (i) such action or the giving or receipt of such Benefit has been approved in advance in writing by the Board of Directors of Marlton or the person(s) to whom the Board has delegated the responsibility to issue or grant such approvals (collectively, the "Ethics Officer") or (ii) such action or the giving or receipt of such Benefit: (i) is consistent with accepted business practices in the applicable jurisdiction; (ii) is of sufficiently limited value so that it will not be construed as a bribe or pay-off; (iii) is not in contravention of applicable laws or regulations and generally accepted ethical standards; (iv) public disclosure of the facts surrounding such action will not embarrass Marlton; and (v) is approved in advance in writing by two executive officers of Marlton, if the value of such action or Benefit is in excess of $500. C. Generally, a conflict of interest occurs when an Employee's personal and financial interest differ from the Employee's responsibilities to Marlton or from Marlton's best interests. Conflicts of interest include situations in which an Employee attempts to use his or her position at Marlton to obtain an improper personal benefit for himself or herself for his or her family members, or for any other person, from any person or entity. Transactions or activities involving a conflict of interest (except to the extent also governed by paragraph IV.B hereof, in which case paragraph IV.B shall be applicable), involving more than a nominal amount (i.e. amounts in excess of $500) are prohibited unless such transaction or activity is approved in advance in writing by the Ethics Officer. D. Corporate funds or other resources shall not be used, directly or indirectly, for any political activity or for the reimbursement of any contribution for such purposes, except as otherwise determined in advance in writing by the Ethics Officer. E. Complete, true and accurate accounting records will be kept for all transactions. It is against Marlton's policy to make entries that intentionally conceal or disguise the true nature of any action. F. It is Marlton's policy that the information in its public communications, including Securities and Exchange Commission ("SEC") filings, be full, fair, accurate, timely and understandable. Employees involved in preparing public communications and SEC filings are responsible for acting in furtherance of this policy. In particular, these Employees are required to maintain familiarity with the disclosure requirements applicable to Marlton and are prohibited from knowingly misrepresenting, omitting, or causing others to misrepresent or omit, material facts about Marlton to others, whether within or outside Marlton. G. Employees should discuss questions concerning the code or the standards imposed hereby, with their immediate supervisor who will either assist the Employee or refer the matter to the appropriate person at Marlton. If an Employee questions whether a transaction or activity conflicts with this code, the concern should be brought to the attention of Marlton's Chairman of the Audit Committee, pursuant to procedures adopted from time to time by the Audit Committee and provided to the Employees. There will be no unfavorable consequence for advising such person, in good faith, of a violation of this code. V. Consequences of Non-Compliance: Adherence to this code is a condition of employment with Marlton. Violations are serious matters and will result in disciplinary action, up to and including employment termination. VI. Effective Date: Application of Other Policies and Procedures; Interpretation: This code is effective as of March 24, 2004, Marlton may from time to time adopt such other policies and procedures governing the conduct of the Employees which shall not, unless otherwise expressly provided therein, be deemed to be a part of this code. The Ethics Officer shall have the authority to interpret this code and the determinations of such person(s) shall be binding on Employees. EX-21 7 exhibit21_subsidiaries.txt SUBSIDIARIES OF THE COMPANY EXHIBIT 21 Subsidiaries of the Company The following are the Company's primary subsidiaries (including state of organization) and percentage of ownership: 1. Sparks Exhibits Holding Corporation (Delaware) 100% 2. Sparks Exhibits & Environments Corp. (Pennsylvania) 100% 3. Sparks Exhibits & Environments Inc. (Georgia) 100% 4. Sparks Exhibits & Environments, Ltd. (California) 80% 5. Sparks Exhibits & Environments, Incorporated (Florida) 100% 6. DMS Store Fixtures LLC (Pennsylvania) 100% 7. Abex Display Systems, Inc. (California) 25% 8. Sparks Europe, B.V. (Netherlands) 25% 9. Sparks Exhibits & Environments Company (Illinois) 100% EX-31 8 exhibit31_certification.txt CERTIFICATION EXHIBIT 31(a) SECTION 302 CERTIFICATION I, Robert B. Ginsburg, the Chief Executive Officer, certify that: 1. I have reviewed this Annual Report on Form 10-K of Marlton Technologies, Inc. 2. Based upon my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report. 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e) for the registrant and have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and (c) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting. 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing equivalent functions): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls over financial reporting. Dated: April 14, 2004 /s/ Robert B. Ginsburg ------------------ Robert B. Ginsburg Chief Executive Officer EX-31.B 9 exhibit31b_certification.txt CERTIFICATION EXHIBIT 31(b) SECTION 302 CERTIFICATION I, Stephen P. Rolf, the Chief Financial Officer, certify that: 1. I have reviewed this Annual Report on Form 10-K of Marlton Technologies, Inc. 2. Based upon my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report. 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e) for the registrant and have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and (c) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting. 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing equivalent functions): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls over financial reporting. Dated: April 14, 2004 /s/ Stephen P. Rolf --------------- Stephen P. Rolf Chief Financial Officer EX-32 10 exhibit32_certification.txt CERTIFICATION EXHIBIT 32 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of Marlton Technologies, Inc. (the "Company") on Form 10-K for the period ending December 31, 2003 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), Robert B. Ginsburg, Chief Executive Officer of the Company, and Stephen P. Rolf, Chief Financial Officer of the Company, each certify, pursuant to 18 U.S.C. ss. 1350, as adopted pursuant to ss. 906 of the Sarbanes-Oxley Act of 2002, based on their knowledge: (1) The Report fully complies with the requirements of Section 13(a) or 15 (d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. /s/ Robert B. Ginsburg /s/ Stephen P. Rolf ------------------ --------------- Robert B. Ginsburg Stephen P. Rolf Chief Executive Officer Chief Financial Officer April 14, 2004 April 14, 2004 -----END PRIVACY-ENHANCED MESSAGE-----