EXHIBIT 10.1
AMENDMENT NO. 5 TO AMENDED AND RESTATED COMMERCIAL LOAN AND
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SECURITY AGREEMENT
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This AMENDMENT NO. 5 TO AMENDED AND RESTATED COMMERCIAL LOAN AND SECURITY
AGREEMENT (this "Agreement") is made as of the 9th day of August, 2007, by and
among TRANS-LUX CORPORATION, a Delaware corporation, with its chief executive
office and principal place of business located at 000 Xxxxxxxx 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, and as further amended by a letter agreement dated May 17, 2007
(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 amend the calculation of the Fixed Charge Coverage
Ratio; (ii) to increase the minimum Tangible Net Worth requirement to
$24,750,000; (iii) to amend the maturity dates of all Loans to May 1, 2009; and
(iv) to add an additional mandatory prepayment fees to be paid if the current
outstanding principal balance of the Loans are not reduced by $10,000,000 as of
certain specified dates; 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 August 8, 2007, the Borrower is legally and validly indebted
to the Lender: (A) by virtue of the Term Loan in the principal amount of
$7,500,000, (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 $5,337,500, 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.
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(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 Borrower
and the Guarantors is hereby updated and replaced with Schedule 4.4(c) attached
hereto.
(ix) After giving effect to the amendments provided herein, 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. Amendment of LSA and other Loan Documents.
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a. Section 1.1 of the LSA entitled "Defined Terms" is amended as follows:
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(i) by deleting the definition of "Maturity Date" set forth therein in
its entirety and by substituting the following therefor:
"Maturity Date" means: (i) with respect to the Term Loan, May 1, 2009;
(ii) with respect to all Converted Term Loans, May 1, 2009; and (iii) with
respect to all outstanding Revolving Loans, May 1, 2009.
(ii) by deleting the definition of "Forbearance and Amendment Fee" set
forth therein in its entirety and by substituting the following therefor:
"Forbearance and Amendment Fee" shall mean the fee to be paid by the
Borrower to the Lender in consideration of the amendments and waivers
granted by the Lender to the Borrower and the Guarantors as set forth in
that certain Amendment No. 1 to Amended and Restated Commercial Loan and
Security Agreement among the Borrower, the Guarantors and the Lender dated
as of May 9, 2006, that certain letter agreement dated November 16, 2006,
that certain letter agreement dated April 2, 2007, that certain letter
agreement dated May 17, 2007, and that certain Amendment No. 5 to Amended
and Restated Commercial Loan and Security Agreement among the Borrower, the
Guarantors and the Lender dated as of August 9, 2007, which Forbearance and
Amendment Fee shall be equal to $350,000 and shall be paid immediately upon
the occurrence of an Additional Mandatory Prepayment Event.
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b. Article 2 of the LSA is hereby amended by deleting Section 2.19A in its
entirety and by substituting the following therefor:
"Section 2.19A Additional Mandatory Prepayments.
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(a) Except for Routine Asset Transfers, in the event that the Borrower
or any Secured Guarantor sells, leases, assigns or otherwise transfers any of
its assets other than in the ordinary course of business, then, simultaneously
with such sale, lease, assignment or transfer (each such sale, lease, assignment
or transfer being referred to herein as an "Additional Mandatory Prepayment
Event"): (a) the Revolving Loan Commitment shall automatically terminate; (b)
the obligation of the Lender to issue any Letters of Credit shall automatically
and immediately terminate; (c) the Borrower shall immediately prepay all Loans
and all other outstanding Obligations; (d) the Borrower shall deposit in an
account with the Lender an amount in cash equal to the Available Amount as of
the date of the Additional Mandatory Prepayment Event which amounts shall be
held by the Lender as collateral for the payment and performance of all
Reimbursement Obligations then arising or which in the future arise for any and
all outstanding Letters of Credit and the Lender shall have exclusive dominion
and control over such account; and (e) the Borrower shall pay to the Lender the
Forbearance and Amendment Fee.
(b) (i) In the event that the outstanding principal balance of the Term
Loan plus the outstanding principal balance of the Converted Term Loan is
greater than $2,837,500 on October 31, 2007, the Borrower shall pay to the
Lender on November 1, 2007 a fee equal to $25,000 (the "$25,000 Fee") which
$25,000 Fee shall be in addition to any Forbearance and Amendment Fee that may
be due owing.
(ii) In the event that the outstanding principal balance of the Term
Loan plus the outstanding principal balance of the Converted Term Loan is
greater than $2,206,250 on January 31, 2008, the Borrower shall pay to the
Lender on February 1, 2008 a fee equal to $50,000 (the "$50,000 Fee") which
$50,000 Fee shall be in addition to the $25,000 Fee and to any Forbearance and
Amendment Fee that may be due and owing.
(iii) In the event that the outstanding principal balance of the
Term Loan plus the outstanding principal balance of the Converted Term Loan is
greater than $1,575,000 on April 30, 2008, the Borrower shall pay to the Lender
on May 1, 2008 a fee equal to $100,000 (the "$100,000 Fee") which $100,000 Fee
shall be in addition to the $25,000 Fee, the $50,000 Fee and to any Forbearance
and Amendment Fee that may be due and owing.
Nothing in this Section 2.19A 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.
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c. Section 5.8 of the LSA entitled "Reporting Requirements" is hereby
amended by adding the following sentence at the end of Section 5.8(c) therein:
"In addition, the Borrower shall furnish or cause to be furnished to the
Lender within thirty (30) days after the end of each calendar month, a current
and completed Borrowing Base Certificate."
d. Section 7.1 of the LSA entitled "Minimum Fixed Charge Coverage Ratio" is
hereby deleted in its entirety and the following is substituted therefor:
"Section 7.1 Minimum Fixed Charge Coverage Ratio.
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(A) Maintain as of the end of the fiscal quarter of the Borrower ending
on June 30, 2007, September 20, 2007 and December 31, 2007, in each case for the
then ended Rolling Period, a ratio of (i) EBITDA for such period minus total
Non-Financed Capital Expenditures during such period minus total dividends paid
during such period plus $1,475,000 (representing a non-cash charge for the early
extinguishment of debt) divided by (ii) Current Maturities of Long-Term Debt
paid during such then ended Rolling Period plus Interest Expense for such period
plus total cash taxes paid for corporate income taxes for such period of not
less than 1.10 to 1.00.
(B) Maintain as of the end of the fiscal quarter of the Borrower ending
on March 31, 2008 and as of the end of each fiscal quarter thereafter, in each
case for the then ended Rolling Period, a ratio of (i) EBITDA for such period
minus total Non-Financed Capital Expenditures during such period minus total
dividends paid during such period divided by (ii) Current Maturities of
Long-Term Debt paid during such then ended Rolling Period plus Interest Expense
for such period plus total cash taxes paid for corporate income taxes for such
period of not less than 1.10 to 1.00.
e. Section 7.2 of the LSA entitled "Minimum Tangible Net Worth" is hereby
deleted in its entirety and the following is substituted therefor:
"Section 7.2 Minimum Tangible Net Worth. Maintain at all times on and
after June 30, 2007, Tangible Net Worth of not less than $24,750,000."
f. 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.
3. Effect of Amendment; Reaffirmation of Liens and other Obligations. Lender
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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
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addition: (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.
4. Fees and Expenses. In consideration of: (a) the extension of the Maturity
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Dates of the Loans as set forth herein, the Borrower shall pay to the Lender on
or before the date hereof an extension fee equal to $25,000; and (b) the
amendments to the financial covenants set forth herein, the Borrower shall pay
to the Lender on or before the date hereof a modification fee equal to $5,000.
In addition to the foregoing fees and any other fees that may be due to the
Lender under the Loan Documents, the Borrower agrees to pay all legal fees and
expenses of Lender incurred in connection with the preparation, negotiation and
execution of this Agreement and the other documents executed and/or delivered in
connection herewith.
5. 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).
6. Counterparts. This Agreement may be executed in any number of identical
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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.
7. 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.
8. Benefit. This Agreement shall inure to the benefit of and bind the parties
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hereto and their respective successors and assigns.
[NEXT PAGE IS SIGNATURE PAGE]
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IN WITNESS WHEREOF, Lender, Borrower and Guarantors have executed this
Agreement as of the date first above written.
WITNESSES:
/s/ Xxxx Xxxxx TRANS-LUX CORPORATION
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/s/ Xxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Its: Executive Vice President
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 HOLDING CORPORATION
TRANS-LUX CINEMA CONSULTING CORPORATION
TRANS-LUX LOVELAND CORPORATION
TRANS-LUX MOVIE OPERATIONS CORPORATION
TRANS-LUX MULTIMEDIA CORPORATION
/s/ Xxxx Xxxxx TRANS-LUX CORPORATION
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/s/ Xxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Its: Executive Vice President
[Signature Page (1) to Amendment No. 5 to Amended and Restated
Commercial Loan and Security Agreement]
/s/ Xxxxxxx Xxxxxxxx PEOPLE'S UNITED BANK (formerly known as
-------------------------------- People's Bank)
/s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Its: Vice President
Duly Authorized
[Signature Page (2) to Amendment No. 5 to Amended and Restated
Commercial Loan and Security Agreement]
