EXHIBIT 10
EIGHTH AMENDMENT AGREEMENT
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AGREEMENT, made as of June 3, 1999, among TRANS-LUX CORPORATION, a
Delaware corporation, TRANS-LUX DISPLAY CORPORATION, a Delaware corporation,
TRANS-LUX MONTEZUMA CORPORATION, a New Mexico corporation, INTEGRATED SYSTEMS
ENGINEERING, INC., a Utah corporation, and FIRST UNION NATIONAL BANK, a national
banking association.
Background
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A. Capitalized terms not otherwise defined shall have the
meanings ascribed to them in the Credit Agreement dated as of August 28, 1995,
among Trans-Lux Corporation, Trans-Lux Consulting Corporation, Trans-Lux Sign
Corporation, Trans-Lux Montezuma Corporation, Integrated Systems Engineering,
Inc., and First Fidelity Bank of Connecticut (predecessor in interest to First
Union National Bank) (as amended, modified or supplemented from time to time,
the "Credit Agreement").
B. TLX and ISE have entered into the Loan Agreement (the
"Bond Loan Agreement") dated as of May 1, 1999 between TLX, ISE and the City of
Logan, Utah (the "Issuer") in connection with the issuance of the maximum
aggregate amount of $3,385,000 Variable Rate Demand/Fixed Rate Tax-Exempt
Revenue Bonds (Integrated Systems Engineering, Inc. Project), Series 1999A (the
"Tax-Exempt Bonds") and ISE has entered into an Indenture covering $1,440,000
Taxable Variable Rate Demand/Fixed Rate Revenue Bonds (Integrated Systems
Engineering, Inc.), Series 1999B (the "Taxable Bonds" and together with the
Tax-Exempt Bonds, the "Bonds").
C. The proceeds of the Bonds will be used to finance the
construction of a manufacturing and office facility for ISE in Logan, Utah (the
"Project").
D. Pursuant to the Bond Loan Agreement, ISE is obligated to
pay principal and interest on the Tax-Exempt Bonds and TLX and ISE have arranged
for the issuance by First Union National Bank of certain letters of credit (the
"Bond L/Cs") for the account of TLX and ISE, and for the benefit of the Trustee,
to provide for payments in connection with the Bonds.
E. The Borrowers have requested that the Lender amend certain
covenants and conditions contained in the Credit Agreement to allow for the
Obligations of the Borrowers in connection with the issuance of the Bonds.
Agreement
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In consideration of the foregoing Background, which is
incorporated by reference, the parties, intending to be legally bound, agree as
follows:
1. Modifications to Credit Agreement. All of the terms and
provisions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect except as follows:
(a) The following definition of "Bonds" is hereby
added to Annex "A" to the Credit Agreement following the definition of "Base
Rate":
"Bonds" shall mean the Tax-Exempt Bonds and the
Taxable Bonds.
(b) The following definition of Indenture is hereby
added to Annex A to the Credit Agreement following the definition of
"Indemnified Person":
"Indentures" shall mean the Tax-Exempt Indenture
and the Taxable Indenture.
(c) The definition of "Obligations" contained in Annex
A to the Credit Agreement is deleted and the following is substituted therefor:
"Obligations" shall mean all loans, advances,
debts, 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 Borrowers to Lender, and all covenants and duties
regarding such amounts, 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
or arising under the Reimbursement Agreement in connection
with the Bonds issued pursuant to the Indentures and shall
include, without limitation, all principal, interest
(including, without limitation, interest which accrues
after the commencement of any case or proceeding referred
to in Section 8.01(g) or (h)), all Fees, Charges (paid by
Lender), expenses, attorneys' fees and any other sum
chargeable to Borrowers under any of the Loan Documents
and all obligations under a "swap agreement" (as that term
is defined in 11 U.S.C. S101(ss)), including, without
limitation, the Swap Agreement.
(d) The following definition of "Reimbursement
Agreement" is hereby added to Annex A to the Credit Agreement following the
definition of "Regulatory Change":
"Reimbursement Agreement" shall mean the
Reimbursement Agreement dated as of June 3, 1999 between
each of TLX and ISE and the Lender.
(e) The following definitions are added to Annex A to
the Credit Agreement following the definition of "Taxes":
"Tax-Exempt Bonds" shall mean the Variable Rate
Demand/Fixed Rate Tax-Exempt Revenue Bonds (Integrated
Systems Engineering, Inc. Project) Series 1999A, issued
by the City of Logan, Utah pursuant to the Tax-Exempt
Indenture.
"Tax-Exempt Indenture" shall mean the Indenture of
Trust dated as of May 1, 1999, between the City of Logan,
Utah and Lender, as trustee, pursuant to which the Tax-
Exempt Bonds were issued.
"Taxable Bonds" shall mean the Taxable Variable
Rate Demand/Fixed Rate Revenue Bonds (Integrated Systems
Engineering, Inc. Project) Series 1999B, issued by ISE
pursuant to the Taxable Indenture.
"Taxable Indenture" shall mean the Indenture of
Trust dated as of May 1, 1999, between ISE and Lender, as
trustee, pursuant to which the Taxable Bonds were issued.
(f) Annex D to the Credit Agreement is deleted and
Annex D attached hereto is substituted therefor.
2. Conditions Precedent. The obligation of the Lender
under this Agreement is subject to the receipt and review, to the satisfaction
of the Lender, of the following:
(a) Amendment Agreement. This Agreement duly executed
by the parties hereto; and
(b) Other. Such other agreements as the Lender shall
require.
4. Reaffirmation by the Borrowers. The Borrowers acknowledge
that each is legally, validly and enforceably jointly and severally indebted to
the Lender under the Notes, and each of TLX and ISE is legally, validly and
enforceably jointly and severally indebted to the Lender under the Reimbursement
Agreement, without defense, counterclaim or offset, and that each, as the case
may be, is legally, validly and enforceably liable to the Lender for all costs
and expenses of collection and reasonable attorneys' fees related to or in any
way arising out of this Agreement, the Notes, the Credit Agreement, the
Reimbursement Agreement and the other Loan Documents. The Borrowers hereby
restate and agree to be bound by all covenants contained in the Credit
Agreement, the Reimbursement Agreement and the other Loan Documents and reaffirm
that all of the representations and warranties contained in the Credit
Agreement, the Reimbursement Agreement and the other Loan Documents remain true
and correct in all material respects with the exception that the financial
statements described therein are deemed true as of the date made. The Borrowers
represent that except as set forth in the Credit Agreement, the Reimbursement
Agreement and the other Loan Documents, there are no pending, or to each
Borrower's knowledge threatened, legal proceedings to which any of the Borrowers
or any of the Guarantors is a party which materially and adversely affect the
transactions contemplated by this Agreement or the ability of the Borrowers or
any of the Guarantors to conduct its business on a consolidated basis. The
Borrowers and the Guarantors acknowledge and represent that the resolutions of
each dated July 27, 1995 (except for resolutions of Trans-Lux Midwest
Corporation which are dated February 13, 1997) and the resolutions of TLX and
ISE dated May 27, 1999, remain in full force and effect and have not been
modified, amended, rescinded or otherwise abrogated.
5. Reaffirmation by the Guarantors. The Guarantors
acknowledge that each is legally and validly indebted to the Lender under the
Guaranty of each without defense, counterclaim or offset, and affirms that each
Guaranty remains in full force and effect and includes, without limitation, the
indebtedness, liabilities and obligations arising under or in any way connected
with the Loans, the Reimbursement Agreement, this Agreement and the other Loan
Documents, whether now existing or hereafter arising.
6. Reaffirmation re: Collateral. The Borrowers and the
Guarantors reaffirm the liens, security interests and pledges granted to the
Lender pursuant to the Loan Documents to secure the obligations of each
thereunder.
7. Other Representations by Borrower and Guarantors. Each of
the Borrowers and the Guarantors represents and confirms that (a) no Event of
Default has occurred and is continuing and that the Lender has not given its
consent to or waived any Default or Event of Default and (b) the Credit
Agreement and the other Loan Documents are in full force and effect and
enforceable against the Borrowers and the Guarantors in accordance with the
terms thereof. Each of the Borrowers and Guarantors represents and confirms
that as of the date hereof, each has no claim or defense (and each of the
Borrowers and the Guarantors hereby waives every claim and defense as of the
date hereof) against the Lender arising out of or relating to the Credit
Agreement, this Agreement and the other Loan Documents or the making,
administration or enforcement of the Loans and the remedies provided for under
the Loan Documents.
8. No Waiver by Lender. Each of the Borrowers and the
Guarantors acknowledges that (a) by execution of this Agreement, the Lender is
not waiving any Default, whether now existing or hereafter occurring, disclosed
or undisclosed, by the Borrower or the Guarantors under the Loan Documents and
(b) the Lender reserves all rights and remedies available to it under the Loan
Documents and otherwise.
9. Prejudgment Remedy Waiver; Waivers. EACH OF THE BORROWERS
AND THE GUARANTORS ACKNOWLEDGES THAT THE LOANS AND THE TRANSACTIONS EVIDENCED BY
THE NOTES, THE CREDIT AGREEMENT, THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE
COMMERCIAL TRANSACTIONS AND EACH WAIVES ITS RIGHTS TO NOTICE AND HEARING PRIOR
TO THE ISSUANCE OF ANY PREJUDGMENT REMEDY, OR AS OTHERWISE ALLOWED BY ANY STATE
OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE LENDER MAY
DESIRE TO USE, AND FURTHER WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT,
NOTICE OF NONPAYMENT, PROTEST AND NOTICE OF ANY RENEWALS OR EXTENSIONS. EACH OF
THE BORROWERS AND THE GUARANTORS ACKNOWLEDGES THAT IT MAKES THIS WAIVER
KNOWINGLY, WILLINGLY, VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
10. Jury Trial Waiver. EACH OF THE BORROWERS AND THE
GUARANTORS WAIVES TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION OR PROCEEDING
ON ANY MATTER ARISING IN CONNECTION WITH, OR IN ANY WAY RELATED TO, THE
FINANCING TRANSACTIONS OF WHICH THE NOTES, THE CREDIT AGREEMENT, THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS IS A PART OR THE ENFORCEMENT OF ANY OF THE LENDER'S
RIGHTS. EACH OF THE BORROWERS AND THE GUARANTORS ACKNOWLEDGES THAT IT MAKES
THIS WAIVER KNOWINGLY, WILLINGLY, VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
11. Miscellaneous.
(a) This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
(b) This Agreement and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with, the
law of the State of Connecticut.
(c) This Agreement shall be deemed a Loan Document
under the Credit Agreement for all purposes.
The parties have executed this Agreement as of the date first
written above.
BORROWERS:
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TRANS-LUX CORPORATION
By /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Title: President
By /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Title: Senior Vice President and
Chief Financial Officer
TRANS-LUX DISPLAY CORPORATION
By /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Title: President
By /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Title: Senior Vice President and
Chief Financial Officer
TRANS-LUX MONTEZUMA CORPORATION
By /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Title: President
By /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Title: Senior Vice President and
Chief Financial Officer
INTEGRATED SYSTEMS ENGINEERING, INC.
By /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Title: President
By /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Title: Senior Vice President and
Chief Financial Officer
GUARANTORS:
TRANS-LUX DISPLAY CORPORATION
TRANS-LUX CANADA, LTD.
TRANS-LUX COCTEAU CORPORATION
TRANS-LUX COLORADO CORPORATION
TRANS-LUX DURANGO CORPORATION
TRANS-LUX EXPERIENCE CORPORATION
TRANS-LUX HIGH FIVE CORPORATION
TRANS-LUX INVESTMENT CORPORATION
TRANS-LUX LOMA CORPORATION
TRANS-LUX LOVELAND CORPORATION
TRANS-LUX MIDWEST CORPORATION
TRANS-LUX MONTEZUMA CORPORATION
TRANS-LUX MULTIMEDIA CORPORATION
TRANS-LUX PENNSYLVANIA CORPORATION
TRANS-LUX PTY, LTD.
TRANS-LUX SEAPORT CORPORATION
TRANS-LUX SERVICE CORPORATION
TRANS-LUX SOUTHWEST CORPORATION
TRANS-LUX STORYTELLER CORPORATION
TRANS-LUX SYNDICATED PROGRAMS
CORPORATION
TRANS-LUX TAOS CORPORATION
TRANS-LUX THEATRES CORPORATION
INTEGRATED SYSTEMS ENGINEERING, INC.
XXXXXXXX REALTY CORPORATION
By /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Title: President
By /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Title: Senior Vice President and
Chief Financial Officer
LENDER:
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FIRST UNION NATIONAL BANK
By /s/ Xxxxx X. XxXxxxx
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Xxxxx X. XxXxxxx
Title: Executive Vice President
ANNEX D
to
CREDIT AGREEMENT
Dated as of August 28, 1995
FINANCIAL STATEMENTS, PROJECTIONS AND NOTICES
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(a) Promptly upon filing thereof, a copy of the Report on Form
10-Q from TLX together with a certificate of the Chief Financial Officer of the
Borrowers that such financial statements contained therein and present fairly in
accordance with GAAP the consolidated financial position and the consolidated
results of operations and the consolidated statements of cash flow of the
Borrowers as at the end of such Fiscal Quarter and for the period then ended,
and that there was no Default in existence as of such time.
(b) Promptly upon filing thereof, a copy of the Report of Form 10-K
together with (i) a statement in reasonable detail showing the calculations used
in determining the Applicants' compliance with the financial covenants set forth
in Section 6.11, (ii) a certification of the Chief Executive Officer or Chief
Financial Officer of the Applicants, in the form of "Rider 1" hereto that all
such financial statements present fairly in accordance with GAAP the cash flows,
the results of operations and the balance sheet of the Borrowers and their
Subsidiaries as at the end of such Fiscal Year and for the period then ended and
that, to their knowledge, there was no Default in existence as of such time.
(c) As soon as practicable, but in any event within five (5)
Business Days after the Borrowers become aware of the existence of any Default,
or any development or other information which would have a Material Adverse
Effect, telephonic or telegraphic notice specifying the nature of such Default
or development or information, including the anticipated effect thereof, which
notice shall be promptly confirmed in writing within five (5) days.
(d) Upon the Lender's request, copies of all federal, state, local
and foreign tax returns, information returns and reports in respect of income,
franchise or other taxes on or measured by income (excluding sales, use or like
taxes) filed by the Borrowers or any Subsidiary thereof.
(e) Promptly upon the issuance thereof, copies of all reports to the
Securities and Exchange Commission or any other governmental agency or any
securities exchange located in the United States of America where TLX or any
Subsidiary is listed, and all reports, notices or statements sent to its
stockholders or to the holders of any Indebtedness or to the Trustee or any
other trustee under any indenture under which the same is issued.
(f) As soon as possible, and in any event within ten days after the
Borrowers know or have reason to believe that any of the events or conditions
specified below with respect to any Plan of Multiemployer Plan has occurred or
exists with respect to the Borrowers or any of their Subsidiaries, a statement
signed by a senior officer of the Borrowers setting forth details respecting
such event or condition and the action, if any, that the Applicants, any
Subsidiary thereof or any ERISA Affiliate proposes to take with respect thereto
(and a copy of any report or notice required to be filed with or given to PBGC
by the Applicants, any Subsidiary thereof or any ERISA Affiliate with respect to
such event or condition):
(i) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a Plan, as to which
PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within 30 days of the occurrence of such event (provided
that a failure to meet the minimum funding standard of Section 412 of the IRC or
Section 302 of ERISA shall be a reportable event regardless of the issuance of
any waivers in accordance with Section 412(d) of the IRC);
(ii) the filing under Section 4041 of ERISA of a notice of
intent to terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Applicants, any Subsidiary thereof
or any ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Applicants,
any Subsidiary thereof or any ERISA Affiliate under Section 4201 or 4204 of
ERISA from a Multiemployer Plan, or the receipt by the Applicants, any
Subsidiary thereof or any ERISA Affiliate of notice from a Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA or that it intends to terminate or has terminated under Section 4041A of
ERISA; and
(v) the institution of a proceeding by a fiduciary or any
Multiemployer Plan against the Applicants, any Subsidiary thereof or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding is not dismissed
within 30 days.
(vi) Such other reports and information respecting the
Applicants' business, financial condition or prospects as the Lender may, from
time to time, reasonably request.
Rider 1
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Pursuant to the terms of the Reimbursement Agreement (the "Agreement")
dated as of June ___, 1999, between Trans-Lux Corporation and Integrated Systems
Engineering, Inc. (the "Borrowers") and First Union National Bank, Inc.
(the "Lender"), the Borrowers certify to the Lender as follows:
1. The consolidated financial statements delivered herewith
for the period ended ____________ present fairly in accordance with GAAP the
consolidated financial position, the consolidated results of operations and the
consolidated statements of cash flow of such Borrower as at the end of such
period.
2. The representations, warranties and covenants of such
Borrower set forth in the Agreement, or which are contained in any certificate,
document or financial or other statement furnished pursuant to or in connection
with the Agreement, are true and correct in all material respects on and as of
the date hereof, except as set forth in the attached Exhibit "A", which contains
a full and complete listing, as of the date hereof, of any changes which vary
from the above-mentioned representations, warranties and covenants;
3. Immediately prior to and immediately after the date
hereof, no Event of Default, as defined in the Agreement, will have occurred and
will be continuing under the Agreement or any and all related documentation, and
there has occurred no event which would, if uncured or uncorrected, constitute
an Event of Default with the giving of notice, passage of time or both; and
4. There are no liquidation or dissolution proceedings
pending or to its knowledge threatened against such Borrower, and no other event
has occurred affecting or threatening the corporate existence of such Borrower.
TRANS-LUX CORPORATION
By______________________________________
Name:
Title:
INTEGRATED SYSTEMS ENGINEERING, INC.
By______________________________________
Name:
Title:
