Exhibit 10.1
AMENDMENT NO. 15 TO AMENDED AND RESTATED COMMERCIAL LOAN AND
------------------------------------------------------------
SECURITY AGREEMENT AND WAIVER AGREEMENT
---------------------------------------
This AMENDMENT NO. 15 TO AMENDED AND RESTATED COMMERCIAL LOAN AND SECURITY
AGREEMENT AND WAIVER AGREEMENT (this "Agreement") is made as of the 1st day of
August, 2010, by and among TRANS-LUX CORPORATION, a Delaware corporation, with
its chief executive office and principal place of business located at 00 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 ("Borrower"), each of the other corporations
signatory hereto as guarantors (collectively, the "Guarantors"), and PEOPLE'S
UNITED BANK (formerly known as People's Bank), a Connecticut chartered banking
corporation with an office located at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000 ("Lender").
W I T N E S S E T H:
WHEREAS, Lender has made certain loans (collectively, the "Loans") to
Borrower pursuant to a certain Amended and Restated Commercial Loan and Security
Agreement dated as of December 23, 2004 (the "Original LSA"), as amended by a
certain Amendment No.1 to Amended and Restated Commercial Loan and Security
Agreement dated as of May 9, 2006, as further amended by a letter agreement
dated November 16, 2006, as further amended by a letter agreement dated April 2,
2007, as further amended by a letter agreement dated May 17, 2007 as further
amended by a certain Amendment No. 5 to Amended and Restated Commercial Loan
and Security Agreement dated as of August 9, 2007, as further amended by a
letter agreement dated March 24, 2008, as further amended by a letter agreement
dated March 27, 2008, as further amended by a certain Amendment No. 8 to
Amended and Restated Commercial Loan and Security Agreement dated as of May 20,
2008, as further amended by a certain Amendment No. 9 to Amended and Restated
Commercial Loan and Security Agreement dated as of July 16, 2008, as further
amended by a letter agreement dated August 13, 2008, as further amended by a
letter agreement dated November 14, 2008, as further amended by a letter
agreement dated November 20, 2008, as further amended by a certain Amendment No.
13 to Amended and Restated Commercial Loan and Security Agreement and Waiver
Agreement dated as of September 4, 2009, and as further amended by a certain
Amendment No. 14 to Amended and Restated Commercial Loan and Security Agreement
and Waiver Agreement dated as of April 2, 2010 (collectively, the "Prior
Amendments");
WHEREAS, in addition to the Prior Amendments, the Original LSA was also
amended by a letter agreement dated April 20, 2009 and a letter agreement dated
August 14, 2009 (collectively, the "2009 Letter Agreements") (the Original LSA,
as amended by the Prior Amendments and the 2009 Letter Agreements and as further
amended from time to time, being hereinafter referred to as, the "LSA");
WHEREAS, capitalized terms not otherwise defined in this Agreement shall
have the meanings ascribed to them in the LSA;
WHEREAS, the Guarantors have guaranteed all obligations of the Borrower to
the Lender under the LSA and related Loan Documents pursuant to a certain
Amended and Restated
Unlimited Guaranty dated as of December 23, 2004 (as the same may be amended or
reaffirmed from time to time, the "Guaranty");
WHEREAS, as security for its obligations to the Lender, including, without
limitation, those arising under the LSA the Borrower has, among other things,
granted to the Lender a lien on and security interest in all of its personal
property assets pursuant to the LSA;
WHEREAS, as security for their respective obligations to the Lender under
the Guaranty, each Secured Guarantor has granted to the Lender a lien on and
security interest in all of its personal property assets pursuant to a certain
Amended and Restated Guarantor Security Agreement dated as of December 23, 2004
(as the same may be amended or reaffirmed from time to time, the "Guarantor
Security Agreement");
WHEREAS, Borrower and the Guarantors (collectively, the "Obligors") have
requested Lender to (i) waive testing of the Senior Debt Coverage Ratio for the
test periods ending June 30, 2010 and September 30, 2010; (ii) reduce the amount
of availability under the Revolving Loans to $4,250,000; (iii) amend the
principal repayment schedule applicable to the Converted Term Loan; and (iv)
waive, amend and modify certain other covenants all as more particularly set
forth herein, and
WHEREAS, Section 10.1 of the LSA provides that no modification or amendment
of the Credit Agreement shall be effective unless the same shall be in writing
and signed by the Lender and Borrower.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Lender and each Obligor agree as follows:
1. Acknowledgments, Affirmations and Representations and Warranties.
a. The Obligors acknowledge, affirm, represent and warrant that:
(i) All of the statements contained herein are true and correct and that
each understands that the Lender is relying on the truth and completeness of
such statements to enter into this Agreement.
(ii) As of August 1, 2010 the Borrower is legally and validly indebted
to the Lender: (A) by virtue of the Revolving Loan in the principal outstanding
amount of $3,890,000.00, and (B) by virtue of the Converted Term Loan in the
principal amount of $1,070,833.00, plus interest and fees accrued and accruing
on each of the foregoing and costs and expenses of collection, including without
limitation, attorneys' fees, relating thereto and there is no defense, offset or
counterclaim with respect to any of the foregoing or independent claim or action
against the Lender.
(iii) Each Guarantor is legally and validly indebted to the Lender by
virtue of the Guaranty and there is no defense, offset or counterclaim with
respect thereto or independent claim or action against the Lender.
-2-
(iv) The resolutions previously adopted by the Board of Directors of the
Borrower and provided to the Lender have not in any way been rescinded or
modified and have been in full force and effect since their adoption to and
including the date hereof and are now in full force and effect, except to the
extent that they have been modified or supplemented to authorize this Agreement
and the documents and transactions described herein.
(v) The Borrower has the power and authority to enter into, and has
taken all necessary corporate action to authorize, this Agreement and the
transactions contemplated hereby and thereby.
(vi) The resolutions previously adopted by the Board of Directors of
each of the Guarantors and provided to the Lender have not in any way been
rescinded or modified and have been in full force and effect since their
adoption to and including the date hereof and are now in full force and effect,
except to the extent that they have been modified or supplemented to authorize
this Agreement and the documents and transactions described herein.
(vii) Each Guarantor has the power and authority to enter into, and has
taken all necessary corporate action to authorize, this Agreement and the
transactions contemplated hereby and thereby.
(viii) All representations, warranties and covenants contained in, and
schedules and exhibits to, the LSA, the Guaranty and the other Loan Documents
are true and correct in all material respects on and as of the date hereof, are
incorporated herein by reference and are hereby remade except that Schedule
4.4(c) to the LSA relating to outstanding indebtedness of the Borrower and the
Guarantors is hereby updated and replaced with Schedule 4.4(c) attached hereto.
(ix) No Default currently exists under the LSA, the Guaranty or any of
the other Loan Documents and no condition exists which would constitute a
default or an event of default (howsoever defined) under any of the Loan
Documents but for the giving of notice or passage of time, or both.
(x) The consummation of the transactions contemplated hereby is not
prevented or limited by, nor does it conflict with or result in a breach of
terms, conditions or provisions of the Borrower's or any Guarantor's Certificate
of Incorporation or Bylaws or any evidence of indebtedness, agreement or
instrument of whatever nature to which the Borrower or any Guarantor is a party
or by which it is bound, does not constitute a default under any of the
foregoing and does not violate any federal, state or local law, regulation or
order or any order of any court or agency which is binding upon the Borrower or
any Guarantor.
2. Amendment of LSA and other Loan Documents.
a. Section 1.1 of the LSA entitled "Defined Terms" is amended as follows:
(i) by deleting the definition of "Existing Revolving Loan Notes" in its
entirety and by substituting the following therefore:
-3-
"Existing Revolving Loan Note" means that certain
Replacement commercial Revolving Loan Promissory Note of the
Borrower payable to the Lender date December 24, 2004 in the
original principal amount of up to $5,000,000.
(ii) by deleting the definition of "Revolving Loan Commitment" set forth
therein in its entirety and by substituting the following therefor:
"Revolving Loan Commitment" means, Lender's commitment to
make Revolving Loans pursuant to Section 2.1(a) hereof and to
issue Letters of Credit pursuant to Section 2.20(a) hereof in
an aggregate principal amount and Available Amount not to
exceed at any time outstanding FOUR MILLION TWO HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($4,250,000).
b. Article 2 of the LSA entitled "AMOUNTS AND TERMS OF LOANS" is hereby
amended as follows:
(i) by amending Section 2.4 entitled "Conversion to the Converted Term
Loan" by deleting subsection (b) therein in its entirety and by substituting the
following therefor:
"(b) The Converted Term Loan shall be evidenced by, and
repaid with interest in accordance with, the Third Amended and
Restated Converted Term Loan Promissory Note of the Borrower
dated as of August 1, 2010 in the original principal amount of
$1,070,833.00, a copy of which is attached hereto as Exhibit D
(such promissory note is referred to herein as the "Converted
Term Note"), which Converted Term Note amends, restates,
supersedes and replaces in its entirety that certain Second
Amended and Restated Converted Term Loan Promissory Note of
the Borrower dated April 2, 2010 in the original principal
amount of $1,220,833.00 (the "Existing Converted Term Note"),
provided, however, that the amendment, restatement and
replacement of the Existing Converted Term Note shall in no
way be construed as a novation of the Borrower's indebtedness
evidenced by the Existing Converted Term Note."
c. Exhibit A to the LSA is hereby deleted in its entirety and a copy of the
Second Replacement Commercial Revolving Loan Promissory Note of the Borrower in
favor of the Lender dated as of August 1, 2010 in the original principal amount
of up to $4,250,000.00, a copy of which is attached hereto as Exhibit A (the
"Second Replacement Revolving Loan Note") is hereby substituted therefor.
d. Exhibit D to the LSA is hereby deleted in its entirety and a copy of the
Third Amended and Restated Converted Term Loan Promissory Note of the Borrower
in favor of the Lender dated as of August 1, 2010 in the original principal
amount of $1,070,833.00, a copy of which is attached hereto as Exhibit B (the
"Third Amended and Restated Converted Term Note") is hereby substituted
therefor.
-4-
e. Any reference in any of the Notes or any of the other Loan Documents to:
(i) the Amended and Restated Commercial Loan and Security Agreement between the
Borrower and the Lender dated as of December 23, 2004 (howsoever defined) shall
be amended to refer to and mean the Original LSA, as amended by the Amendments
and as further amended and modified by this Agreement; (ii) the Revolving Loan
Note shall refer to and mean the Second Replacement Commercial Revolving Loan
Promissory Note of the Borrower in favor of the Lender dated as of August 1,
2010, in the original principal amount of up to $4,250,000.00, a copy of which
is attached hereto as Exhibit A, (iii) the Converted Term Note shall refer to
and mean the Third Amended and Restated Converted Term Loan Promissory Note of
the Borrower in favor of the Lender dated as of August 1, 2010, in the original
principal amount of $1,070,833.00, a copy of which is attached hereto as Exhibit
B, and (iv) the Existing Revolving Loan Notes shall mean the Existing Revolving
Loan Note defined in the LSA, as amended hereby.
3. Waivers.
a. At the request of the Borrower, the Lender has agreed not to test the
Senior Debt Coverage Ratio set forth in Section 7.4A of the LSA for the test
periods ending June 30, 2010 and September 30, 2010 (the "Test Period Waivers").
Testing of the Senior Debt Coverage Ratio will resume for the test period ending
December 31, 2010 and will continue thereafter in accordance with the LSA.
b. The Obligors acknowledge that one or more of them have failed to make
certain pension plan contributions which were due on July 15, 2010 (the "Pension
Plan Contribution Defaults") and, that as a result thereof, there has occurred
an Event of Default under the LSA. In addition, the Obligors further
acknowledge that one or more of them do not expect to make certain pension plan
contributions which are due on October 15, 2010 (the "Anticipated Pension Plan
Contribution Defaults") and, that if such contributions are not made, there
shall occur an Event of Default under the LSA. Subject to the proviso herein
below, the Lender hereby agrees to waive such Pension Plan Contribution Defaults
with respect to the July 15, 2010 payment date and to prospectively waive the
Anticipated Pension Plan Contribution Defaults with respect to the October 15,
2010 payment date, provided, however, that in the event that the IRS or any
other Governmental Authority takes any enforcement action or otherwise exercises
any rights and remedies it may have against any Obligor with respect to such
Pension Plan Contribution Defaults and/or such Anticiplated Pension Plan
Contribution Defaults (any such enforcement action or exercise of rights and
remedies being referred to as a "Pension Plan Enforcement Action"), any such
Pension Plan Enforcement Action shall constitute a separate and distinct Event
of Default under and within the meaning of the LSA which shall entitle the
Lender to exercise any and all of its rights and remedies thereunder and at law.
c. By their signatures below, each of the Obligors hereby acknowledges and
agrees that the Test Period Waivers and the waivers set forth in Section 3.b.
above are one-time waivers for the period or dates specifically specified above
and that the execution, delivery and effectiveness of this Agreement shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Lender under the LSA or any of the other Loan Documents, nor
constitute or be construed or interpreted, directly or by implication, as a
waiver
-5-
of or an amendment or modification to any other obligation of any Obligor to the
Lender under the LSA or any of the other Loan Documents.
4. Conditions to Effectiveness. The effectiveness of this Agreement is subject
to the prior satisfaction of the following conditions precedent (the date of
such satisfaction herein referred to as the "Amendment Effective Date"):
a. The representations and warranties of the Obligors contained herein
shall be true and correct in all material respects.
b. There shall exist no Default or Event of Default.
c. The Lender shall have received evidence satisfactory to the Lender that
all requisite corporate and company action necessary for the valid execution,
delivery and performance by each of the Obligors of this Agreement and all other
instruments and documents delivered by the Obligors, or any one of them, in
connection herewith has been taken.
d. Borrower shall execute and deliver to the Lender the Second Replacement
Revolving Loan Note.
e. Borrower shall execute and deliver to the Lender the Third Amended and
Restated Converted Term Note.
f. In connection with the amendments and waivers contemplated by this
Agreement, the Borrower shall have paid to the Lender a non-refundable amendment
and waiver fee in an amount of $5,000 (the "Amendment and Waiver Fee").
5. Effect of Amendment; Reaffirmation of Liens and other Obligations. Lender
and each Obligor hereby agree and acknowledge that (except as provided in this
Agreement, the Third Amended and Restated Converted Term Note and the Second
Replacement Revolving Loan Note), the LSA, the Guaranty, the Notes and the other
Loan Documents (together with all Schedules and Exhibits attached hereto) remain
in full force and effect and have not been modified or amended in any respect,
it being the intention of Lender and each Obligor that this Agreement and the
LSA be read, construed and interpreted as one and the same instrument. In
addition, without limiting the generality of the foregoing: (i) the Borrower
acknowledges, affirms and agrees that the Lender's security interest in the
Collateral shall continue to secure any and all of the Borrower's indebtedness
to the Lender, including without limitation, the indebtedness arising under the
LSA, as amended hereby; and (ii) each Guarantor acknowledges, affirms and agrees
that (A) the Obligations of the Borrower to the Lender which have been
guaranteed by such Guarantor include, without limitation the Loans, as modified
hereby; and (B) each Secured Guarantor acknowledges, affirms and agrees that the
Lender's security interest in the Collateral (as defined in the Guarantor
Security Agreement) shall continue to secure the payment and performance of all
of its obligations and liabilities to the Lender arising under the Guaranty.
6. Fees and Expenses. In addition to the Amendment and Waiver Fee, the
Borrower agrees to pay all reasonable legal fees and expenses of Lender incurred
in connection with the preparation, negotiation and execution of this Agreement.
-6-
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut (except its conflicts of
laws provisions).
8. Counterparts. This Agreement may be executed in any number of identical
counterparts, each of which shall be deemed to be an original, and all of which
shall collectively constitute a single agreement, fully binding upon and
enforceable against the parties hereto.
9. Capitalized Terms. All capitalized terms not otherwise defined in this
Agreement shall have the meanings ascribed to such terms in the LSA.
10. Benefit. This Agreement shall inure to the benefit of and bind the parties
hereto and their respective successors and assigns.
[NEXT PAGE IS A SIGNATURE PAGE]
-7-
IN WITNESS WHEREOF, Lender, Borrower and Guarantors have executed this
Agreement as of the date first above written.
WITNESSES:
/s/ Witness TRANS-LUX CORPORATION
--------------------------
/s/ Witness By: /s/ Xxxxxx X. Xxxxx
-------------------------- ---------------------------
Name: Xxxxxx X. Xxxxx
Its: Executive Vice President
Duly Authorized
[Signature Page (1) to Amendment No. 15 to Amended and Restated
Commercial Loan and Security Agreement and Waiver Agreement]
TRANS-LUX DISPLAY CORPORATION
TRANS-LUX MIDWEST CORPORATION
TRANS-LUX COMMERCIAL CORPORATION
(f/k/a Trans-Lux West Corporation)
TRANS-LUX DURANGO CORPORATION
TRANS-LUX SERVICE CORPORATION
TRANS-LUX FOUR CORNERS CORPORATION
TRANS-LUX LOS LUNAS CORPORATION
TRANS-LUX MONTEZUMA CORPORATION
TRANS-LUX REAL ESTATE CORPORATION
TRANS LUX SUMMIT CORPORATION
TRANS-LUX TAOS CORPORATION
TRANS-LUX VALLEY CORPORATION
TRANS-LUX WYOMING CORPORATION
TRANS-LUX CASTLE ROCK COPORATION
TRANS-LUX COCTEAU CORPORATION
TRANS-LUX COLORADO CORPORATION
TRANS-LUX DESERT SKY CORPORATION
TRANS-LUX DREAMCATCHER CORPORATION
TRANS-LUX HIGH FIVE CORPORATION
TRANS-LUX LARAMIE CORPORATION
TRANS-LUX LOMA CORPORATION
TRANS-LUX SKYLINE CORPORATION
TRANS-LUX STARLIGHT CORPORATION
TRANS-LUX STORYTELLER CORPORATION
TRANS-LUX NEW MEXICO CORPORATION
TRANS-LUX MULTI-MEDIA CORPORATION
TRANS-LUX CINEMA CONSULTING CORPORATION
TRANS-LUX LOVELAND CORPORATION
TRANS-LUX MOVIE OPERATIONS CORPORATION
TRANS-LUX MULTIMEDIA CORPORATION
/s/ Witness
--------------------------
/s/ Witness By: /s/ Xxxxxx X. Xxxxx
-------------------------- ---------------------------
Name: Xxxxxx X. Xxxxx
Its: Executive Vice President
/s/ Witness PEOPLE'S UNITED BANK (formerly
-------------------------- known as People's Bank)
/s/ Witness By: /s/ Xxxxxx X. Xxxxxxx
-------------------------- ---------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Region Manager, SVP
Duly Authorized
[Signature Page (2) to Amendment No. 15 to Amended and Restated
Commercial Loan and Security Agreement and Waiver Agreement]
