Exhibit 10.2
AMENDMENT NO. 1 TO AMENDED AND RESTATED COMMERCIAL LOAN AND
-----------------------------------------------------------
SECURITY AGREEMENT
------------------
This AMENDMENT NO. 1 TO AMENDED AND RESTATED COMMERCIAL LOAN AND SECURITY
AGREEMENT (this "Agreement") is made as of the 9th day of May, 2006, 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 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 (as amended from time to time, 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; and 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 (the "Guarantor
Security Agreement"); and
WHEREAS, Borrower and the Guarantors (collectively, the "Obligors") have
requested Lender (i) to retroactively amend certain financial covenants for the
quarters ended December 31, 2005 and March 31, 2006; (ii) to prospectively amend
certain financial covenants for the quarters ending June 30, 2006, September 30,
2006, December 31, 2006 and all quarters thereafter; (iii) to amend the maturity
dates of all Loans to January 1, 2008; (iv) to modify the interest rate
applicable to the Line of Credit Loan as well as certain terms and conditions
relating to advances under said Line of Credit Loan; (v) to amend and restate
the Term Loan Note to reflect the modification of the maturity date applicable
thereto; (vi) to modify covenants relating to the maximum amount of non-
financed capital expenditures; (vii) to clarify that the proceeds of the
Revolving Loans shall not be used to repay Subordinated Debt; and (viii) to add
an additional mandatory prepayment event and a forbearance and amendment fee;
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 May 1, 2006, the Borrower is legally and validly indebted to
the Lender: (A) by virtue of the Term Loan in the principal amount of
$8,750,000.00, (B) by virtue of the Revolving Loan in the principal outstanding
amount of $850,000.00, (C) by virtue of the Line of Credit Loan in the principal
outstanding amount of $0.00, (D) by virtue of the Converted Term Loan in the
principal amount of $0.00, 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 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.
-2-
(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.
a. Section 1.1 of the LSA entitled "Defined Terms" is amended as follows:
(i) by deleting the definition of "Existing Term Notes" set forth
therein in its entirety and by substituting the following therefor:
"Existing Term Note" means that certain Replacement Term Loan
Promissory Note of the Borrower payable to the Lender dated December
23, 2004 in the original principal amount of $10,000,000.
(ii) 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, January
1, 2008; (ii) with respect to all outstanding Line of Credit Loans and
all Converted Term Loans, January 1, 2008; and (iii) with respect to
all outstanding Revolving Loans, January 1, 2008.
(iii) by adding the following defined terms in alphabetical order:
"Additional Mandatory Prepayment Event" shall have the meaning set
forth in Section 2.19A hereof.
"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
-3-
and the Lender dated as of May 9, 2006 which Forbearance and Amendment
Fee shall be paid as follows: (i) $125,000, if there is an Additional
Mandatory Prepayment Event on or before October 1, 2006, (ii) $250,000,
if there is an Additional Mandatory Prepayment Event after October 1,
2006 but on or before December 31, 2006, and (iii) $350,000, if there
is an Additional Mandatory Prepayment Event after December 31, 2006.
"Routine Asset Transfer" means the transfer of assets of the
Borrower and/or any Guarantor which are permitted under Section 6.6
hereof.
b. Section 2.2 of the LSA is hereby entitled "Term Loan" is hereby amended
as follows:
(i) by deleting Section 2.2(a) in its entirety and by substituting the
following therefor:
"(a) The Lender extended to the Borrower a term loan in the
original principal amount of $10,000,000 on December 23, 2004 (the "Term
Loan") which Term Loan has an outstanding principal balance of $8,750,000.00 as
of May 9, 2006."
(ii) by deleting Section 2.2(b) therein in its entirety and by substituting
the following therefor:
"(b) The Term Loan shall be evidenced by, and repaid in accordance
with the promissory note of the Borrower, substantially in the form
attached hereto as Exhibit B (the "Term Loan Note"). The Term Loan
Note issued to Lender shall (i) be executed by the Borrower, (ii) be
payable to Lender and be dated as of May 9, 2006, (iii) be in a stated
principal amount equal to $8,750,000.00 and be payable as provided in
Section 2.2(d), (iv) mature on the Maturity Date of the Term Loan, (v)
bear interest as provided in Section 2.5, and (vi) be entitled to the
benefits of this Agreement and the other Loan Documents. The Term Loan
Note amends, restates and replaces in its entirety the Existing Term
Note provided, however, that the amendment, restatement and replacement
of the Existing Term Note shall in no way be construed as a novation of
the Borrower's indebtedness evidenced by the Existing Term Note."
c. Section 2.3 of the LSA entitled "Line of Credit" is hereby amended as
follows:
(i) by deleting Section 2.3(d) in its entirety and by substituting the
following therefor:
"(d) The Borrower may prepay the Line of Credit, in whole or in
part, together with accrued interest to the date of prepayment on the
amount prepaid on any Business Day, without any Make-Whole Premium."
(ii) by adding the following subsection immediately after Section
2.3(e):
-4-
"(f) Advances under the Line of Credit Loan shall be subject to
the following additional terms and conditions:
(i) Simultaneously with the making of each Line of Credit Loan,
the Borrower shall pay to the Lender a line of credit advance fee equal
to 1.25% of the principal amount of each Line of Credit Loan.
(ii) Each Line of Credit Loan shall be in a minimum principal
amount of not less than $1,000,000.
(iii) Simultaneously with the making of each Line of Credit Loan,
the Borrower repay the Subordinated Notes from cash on hand in an
amount equal to not less than the principal amount of the Line of
Credit Loan then being made. For purposes hereof, cash on hand shall
not include any cash proceeds received from the Line of Credit Loans."
d. Section 2.4 of the LSA entitled "Conversion to the Converted Term Loan"
is hereby amended as follows:
(i) by deleting Section 2.4(b) 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 promissory note of the Borrower,
substantially in the form of Exhibit D hereto (such promissory note is referred
to herein as the "Converted Term Note"). On the Conversion Date, the Borrower
shall issue the Converted Term Note to the Lender which shall (i) be executed by
the Borrower, (ii) be payable to Lender and be dated the Conversion Date, (iii)
be in a stated principal amount equal to the outstanding principal amount of all
Line of Credit Loans on the Conversion Date, (iv) be payable in quarterly
installments of principal and interest based on a 4-year straight line
amortization schedule with a final payment of all outstanding principal and
interest due on the Maturity Date of the Converted Term Loan, (v) mature on the
Maturity Date of the Converted Term Loan, (vi) bear interest as provided in
Section 2.5, and (vii) be entitled to the benefits of this Agreement and the
other Loan Documents."
(ii) by deleting Section 2.4(c) in its entirety and by
substituting the following therefor:
"(c) The Borrower may prepay the Converted Term Loan, in whole or
in part, together with accrued interest to the date of prepayment on
the amount prepaid on any Business Day, without any Make-Whole
Premium."
e. Section 2.5 of the LSA entitled "Interest Provisions" is hereby amended
by deleting Section 2.5(a)(ii) entitled "Line of Credit Loans" in its entirety
and by substituting the following therefor:
-5-
(ii) Line of Credit Loans. Subject to the provisions of Sections
2.5(c) or 2.12 hereof, during the period from the date made through and
including the date of payment in full, each Line of Credit Loan shall
bear interest on the outstanding principal amount thereof at a rate per
annum equal to the Base Rate, on a floating basis."
f. Section 2.5 of the LSA entitled "Interest Provisions" is hereby further
amended by deleting Section 2.5(a)(iv) entitled "Converted Term Loan" in its
entirety and by substituting the following therefor:
"(iv) Converted Term Loan. Subject to the provisions of Sections
2.5(c) or 2.12 hereof, during the period from the date made through and
including the date of payment in full, the Converted Term Loan shall
bear interest on the outstanding principal amount thereof at a rate per
annum equal to the Base Rate, on a floating basis. Interest payments
shall be due and payable in arrears commencing on April 1, 2007 and
continuing on the first Business Day of each subsequent fiscal quarter
of the Borrower thereafter through and including the Maturity Date of
the Converted Term Loan."
g. Section 2.15 of the LSA entitled "Use of Proceeds" is hereby deleted in
its entirety and the following is substituted therefor:
"Section 2.15 Use of Proceeds. The proceeds of the Term Loan were
used by the Borrower to refinance the term loans replaced by the
Existing Term Loans. The proceeds of the Revolving Loans made
hereunder shall be used by the Borrower for itself or for its
Subsidiaries to support the Borrower's working capital requirements and
trading assets and to purchase equipment but in no event shall the
proceeds of any Revolving Loans be used by the Borrower to repay any
Subordinated Debt. The proceeds of the Line of Credit Loans shall be
used by the Borrower solely for the purpose of funding the repayment of
up to 50% of the Subordinated Notes. The Letters of Credit shall
finance the Borrower's purchase of goods in the ordinary course of its
business. The Borrower will not, directly or indirectly, use any part
of the proceeds of any of the Loans, or any Letter of Credit, for the
purpose of purchasing or carrying any margin stock within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System
or to extend credit to any Person for the purpose of purchasing or
carrying any such margin stock."
h. Article 2 of the LSA is hereby amended by adding the following section
immediately after Section 2.19:
"Section 2.19A Additional Mandatory Prepayments. 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 and the Line of Credit 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
-6-
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 applicable Forbearance and
Amendment Fee.
i. Article 6 of the LSA is hereby amended by adding the following section
immediately after Section 6.14:
"Section 6.15 Limitations on Non-Financed Capital Expenditures.
Make Non-Financed Capital Expenditures (as that term is defined in
Section 7.5(h) hereof) in excess of $1,000,000 per fiscal quarter of
the Borrower commencing with the fiscal quarter of the Borrower ending
September 30, 2006."
j. 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.
(A) Maintain as of the end of the fiscal quarters of the Borrower
ending on each December 31, 2005, March 31, 2006 and June 30, 2006, 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 as of the end of such 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 September 30, 2006 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 as of the
end of such period plus Interest Expense for such period plus total
cash taxes paid for corporate income taxes for such period of not less
than 1.20 to 1.00."
k. 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 December 31, 2005, Tangible Net Worth of not less than
$19,000,000."
l. Section 7.5 of the LSA entitled "Certain Financial Terms" is hereby
amended as follows:
-7-
(i) by deleting the definition of "Capital Expenditures" set forth
in Section 7.5(b) in its entirety and by substituting the following therefor:
"(b) "Capital Expenditures" means the difference of: (i) the
gross amounts paid or accrued by the Borrower or any of its
Subsidiaries in connection with the purchase or lease by the
Borrower or any of its Subsidiaries of Capital Assets that would
be required to be capitalized and shown on the balance sheet of
such Person in accordance with GAAP; minus (ii) $2,500,000."
(ii) by deleting the definition of "Current Maturities of
Long-Term Debt" set forth in Section 7.5(d) in its entirety and by substituting
the following therefor:
"(d) "Current Maturities of Long-Term Debt" means, with
respect to all Debt which, in accordance with GAAP, may be
properly classified as long-term debt: (i) the portion of such
Debt which is due within one (1) year from the date of
determination thereof; minus (ii) the portion of such Debt due on
December 1, 2006 under the Subordinated Notes."
(iii) by deleting the definition of "Non-Financed Capital
Expenditures" set forth in Section 7.5(h) in its entirety and by substituting
the following therefor:
"(h) "Non-Financed Capital Expenditures" means those Capital
Expenditures which were not financed with the proceeds of the
Loans or other Indebtedness permitted hereunder; provided,
however, that such Non-Financed Capital Expenditures shall not
include Non-Financed Capital Expenditures which the Borrower
certifies to the Lender will be financed within 180 days from the
date such Non-Financed Capital Expenditure was made; and provided,
further, however, that in the event the Capital Expenditure
Financing does not occur within the time period provided, said
Non-Financed Capital Expenditure shall be included in the
definition of Non-Financed Capital Expenditures for purposes of
the calculation of the Borrower's Minimum Fixed Charge Coverage
Ratio set forth in Section 7.1 and for purposes of determining
compliance with Section 6.15 hereof."
m. The replacement term loan promissory note attached to the LSA as Exhibit
B is hereby deleted and the Second Replacement Term Loan Promissory Note
attached hereto as Exhibit A is substituted therefor.
n. The form of converted term loan promissory note attached to the LSA as
Exhibit D is hereby deleted and the Form of Converted Term Loan Promissory Note
attached hereto as Exhibit B is substituted therefor.
o. 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 Amended and Restated Commercial Loan and
Security Agreement between the
-8-
Borrower and the Lender dated as of December 23, 2004, as amended and modified
by this Agreement.
3. Effect of Amendment; Reaffirmation of Liens and other Obligations. Lender
and each Obligor hereby agree and acknowledge that except as provided in this
Agreement and the Second Replacement Term Loan Promissory Note, 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:
(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 addition to any Forbearance and Amendment Fee that
may be due, 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
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
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
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
hereto and their respective successors and assigns.
[NEXT PAGE IS SIGNATURE PAGE]
-9-
IN WITNESS WHEREOF, Lender, Borrower and Guarantors have executed this
Agreement as of the date first above written. WITNESSES:
TRANS-LUX CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
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
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Its: Executive Vice President
PEOPLE'S BANK
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Its: Vice President
Duly Authorized
