Exhibit 10.1
AMENDMENT NO. 9 TO AMENDED AND RESTATED COMMERCIAL LOAN AND
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SECURITY AGREEMENT
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This AMENDMENT NO. 9 TO AMENDED AND RESTATED COMMERCIAL LOAN AND
SECURITY AGREEMENT (this "Agreement") is made as of the 16th day of July, 2008,
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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").
WITNESSETH:
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 and as further amended by a certain Amendment No. 8 to
Amended and Restated Commercial Loan and Security Agreement dated as of May 20,
2008 (collectively, the "Amendments") (the Original LSA, as amended by the
Amendments 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 Agreement");
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 Agreement, each Secured Guarantor has granted to the Lender a
lien on and security interest in all if 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 (i) to consent to the sale of assets of the Borrower's Theatre
Division pursuant to an Asset Purchase Agreement dated July 7, 2008 among Marwit
Capital Partners II, L.P. (together with Storyteller Theaters Corporation or
any other corporation or entity which may be formed by Marwit Capital Partners
II, L.P. to acquire such theatre Division, the "Purchaser") and the Borrower's
subsidiaries (the "Asset Purchase Agreement"), a copy of which has been
delivered to the Lender; and (ii) to delete the provisions of Section 2.19A
entitled "Additional Mandatory Prepayments", 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.
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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 July 15, 2008, the Borrower is legally and validly
indebted to the Lender: (A) by virtue of the Term Loan in the principal amount
of $6,500,000, (B) by virtue of the Revolving Loan in the principal outstanding
amount of $5,000,000, and (C) by virtue of the Converted Term Loan in the
principal amount of $3,812,500, 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 Agreement and there is no defense, offset or
counterclaim with respect thereto or independent claim or action against the
Lender.
(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 Agreement 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
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Borrower and the Guarantors is hereby updated and replaced with Schedule 4.4(c)
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attached hereto which includes pro forma elimination of loans and mortgages of
the Theatre Division assumed or repaid by the Purchaser under the Asset Purchase
Agreement.
(ix) No Default currently exists under the LSA, the Guaranty
Agreement 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. Consent to Sale of Theater Division.
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Lender hereby consents to the sale of assets of the Theatre Division
substantially in accordance with the Asset Purchase Agreement provided that:
(i) simultaneous with the closing of such transaction, the net
proceeds of approximately $6,000,000, after deducting all closing expenses
including taxes, expenses shared under the Asset Purchase Agreement, legal fees,
fee of Jesup and Xxxxxx Incorporated of $600,000, the Forbearance and Amendment
Fee payable to Lender and other customary and necessary expenses of the
transaction, are applied in prepayment to the Term Loan in the inverse order of
maturity as Additional Mandatory Prepayments;
(ii) simultaneous with the closing of such transaction, the
Forbearance and Amendment Fee of $350,000 is paid to the Lender; and
(iii) upon receipt by the Borrower or any Guarantor of any earn-out
payments or other amounts due to any of them under the Asset Purchase Agreement
(collectively, the "Earn-Out
Payments"), the amount of any such Earn-Out Payment which is received by the
Borrower or any Guarantor shall be immediately turned over to the Lender for
application to the prepayment of the Loans in such order as the Lender shall
determine in it sole and absolute discretion and, in connection therewith, on or
before August 15, 2008, the Borrower and the Guarantors shall execute and
deliver to the Lender a collateral assignment of such Earn-Out Payments (the
"Collateral Assignment") which shall be agreed to and acknowledged by the
Purchaser and which shall otherwise be in form and content satisfactory to the
Lender. The Borrower and the Guarantors agree and acknowledge that time is of
the essence with respect to the performance of this condition and that the
failure of the Borrower or any Guarantor to immediately turn over any Earn-Out
Payment to the Lender or to deliver the Collateral Assignment in accordance with
the terms hereof shall constitute an Event of Default under, and as defined in,
the LSA.
3. Amendment of LSA and other Loan Documents.
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a. After giving effect to the payments to Lender in 2 above, the
following amendments shall simultaneously be effected:
(i) deleting the definition of "Forbearance and Amendment
Fee" set forth therein in its entirety; and
(ii) amending Article 2 of the LSA by deleting "Section 2.19A
Additional Mandatory Prepayments" in its entirety.
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Nothing in this Section Consent and Amendment shall be deemed or
implied, directly or indirectly, to relieve the Borrower from making regularly
scheduled principal and interest payments under the Notes or otherwise waive any
of the Borrower's other obligations to the Lender, and the Borrower agrees and
acknowledges that all regularly schedule principal and interest payments under
the Notes shall continue to be made as set forth therein and that any
prepayments shall be applied in the inverse order of maturity and otherwise in
accordance with the terms of the LSA.
b. 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.
4. Effect of Amendment; Reaffirmation of Liens and other Obligations.
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Lender and each Obligor hereby agree and acknowledge that except as provided in
this Agreement, the LSA, the Guaranty Agreement, the Guarantor Security
Agreement 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 Agreement.
5. Fees and Expenses. The Borrower agrees to pay all legal fees and
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expenses of Lender incurred in connection with the preparation, negotiation and
execution of this Agreement.
6. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Connecticut (except its conflicts of
laws provisions).
7. Counterparts. This Agreement may be executed in any number of
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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.
8. Capitalized Terms. All capitalized terms not otherwise defined in this
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Agreement shall have the meanings ascribed to such terms in the LSA.
9. Benefit. This Agreement shall inure to the benefit of and bind the
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parties hereto and their respective successors and assigns.
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, Lender, Borrower and Guarantors have executed this
Agreement as of the date first above written.
WITNESSES:
/s/ Xxx Xxxxxxxxx TRANS-LUX CORPORATION
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/s/ Xxxx Xxxxx
------------------------------ By:/s/ Xxxxxx X. Xxxxx
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Name: A. D. Xxxxx
Its: EVP
Duly Authorized
TRANS-LUX DISPLAY CORPORATION
TRANS-LUX MIDWEST CORPORATION
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/ Xxx Xxxxxxxxx
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/s/ Xxxx Xxxxx
------------------------------ By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Its: Executive Vice President
[Signature Page 1 to Amendment No. 9 to Amended and Restated
Commercial Loan and Security Agreement]
/s/ Witness PEOPLE'S UNITED BANK (formerly known as
----------------------------- People's Bank)
/s/ Witness By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Its: Vice President
Duly Authorized
[Signature Page 2 to Amendment No. 9 to Amended and Restated
Commercial Loan and Security Agreement]
