Exhibit 10(a)
FIRST AMENDMENT
TO
COMMERCIAL LOAN AND SECURITY AGREEMENT
AND WAIVER AGREEMENT
THIS FIRST AMENDMENT AND WAIVER AGREEMENT (the "Amendment"), dated May
13, 2003 is entered into by and among TRANS-LUX CORPORATION, a Delaware
corporation (the "Borrower"), PEOPLE'S BANK ("People's") and THE BANK OF NEW
YORK ("BNY" and together with People's and their respective successors and
assigns, the "Lenders" and each individually a "Lender") and PEOPLE'S BANK, a
Connecticut state chartered banking corporation with an office at 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, as agent for the Lenders, (hereinafter
referred to as the "Agent").
Background
----------
A. Reference is made to that certain Commercial Loan and Security
Agreement, dated February 12, 2003, by and among the Borrower, Lenders and the
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "Loan Agreement"), pursuant to which the Lenders agreed to make
loans to, and otherwise extend credit for the benefit and/or account of, the
Borrower in the amounts and subject to the terms and conditions set forth in the
Loan Agreement. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Loan Agreement.
B. Subsequent to the execution of the Loan Agreement, Trans-Lux West
Corporation ("Seller"), a Secured Guarantor under the Loan Agreement, agreed to
sell certain of its assets in connection with the sale of its Custom Sports
Division (the "Sale") to Barco, Inc. (the "Purchaser"). The Sale had been
listed on Schedule 6.6 to the Loan Agreement, and was authorized by the Lenders.
C. On March 28, 2003 Borrower entered into that certain Asset Purchase
Agreement (the "Asset Purchase Agreement") by and among Borrower, Seller,
Purchaser and Barco, NV, pursuant to which Borrower agreed under Section 2.1.4
and Section 10.5 of the Asset Purchase Agreement to guaranty certain payment
obligations of Seller (the "Guarantor Obligations"). Borrower simultaneously
executed that certain Guaranty of even date therewith by and among Borrower,
Seller and Barco, Inc. guaranteeing the Guarantor Obligations.
D. Section 6.2 of the Loan Agreement provides that Borrower shall not,
without the consent of Lenders, "[C]reate, incur, assume, or suffer to exist any
recourse or nonrecourse Indebtedness." Section 6.7 of the Loan Agreement
provides that Borrower shall not, without the consent of Lenders, "[A]ssume,
guarantee, endorse or otherwise become liable upon the obligations of any
Person, firm or corporation..."
E. Borrower has requested that Lenders, among other things, (i) amend the
Loan Agreement to reflect certain changes as a result of the Sale, (ii) correct
an error in a payment
date of the Term Loans, and (iii) waive the Events of Default arising from
Borrower's guaranty described in paragraph C above.
F. Lenders have agreed to Borrower's request, subject to the terms and
conditions contained in this Agreement.
Agreement
---------
In consideration of the Background, which is incorporated by this
reference, other good and valuable consideration, the receipt and sufficiency of
which is acknowledged, and the mutual promises and covenants contained in this
Amendment, the parties, intending to be bound legally, agree as follows:
1. (a) Amended and Restated Term Loan Notes. Simultaneously with the
execution and delivery of this Amendment, Borrower is executing and delivering
to Lenders (i) the $4,666,666.67 Amended and Restated Term Loan A Promissory
Note payable to the order of People's in the form of Exhibit A-1 attached
hereto, and (ii) the $2,333,333.33 Amended and Restated Term Loan A Promissory
Note payable to the order of BNY in the form of Exhibit A-2 attached hereto
(collectively, the "Amended Term Loan A Notes"), (iii) the $6,666,666.67 Amended
and Restated Term Loan B Promissory Note payable to the order of People's in the
form of Exhibit B-1 attached hereto, and (iv) the $3,333,333.33 Amended and
Restated Term Loan B Promissory Note in the form of Exhibit B-2 attached hereto
(collectively, the "Amended Term Loan B Notes") (The Amended Term Loan A Notes
and the Amended Term Loan B Notes are hereinafter referred to as the "Amended
Term Loan Notes"). The Lenders shall return to Borrower the original
$4,666,666.67 Term Loan A Promissory Note, the original $2,333,333.33 Term Loan
A Promissory Note, the original $6,666,666.67 Term Loan B Promissory Note and
the original $3,333,333.33 Term Loan B Promissory Note, each marked "Replaced."
All references in the Loan Agreement to Term Loan A Notes shall be deleted and
replaced with references to the Amended Term Loan A Notes, and all references in
the Loan Agreement to the Term Loan B Notes shall be deleted and replaced with
references to the Amended Term Loan B Notes.
(b) Borrower shall pay interest on the outstanding principal balance
of the Amended Term Loan Notes and shall repay the indebtedness evidenced by the
Amended Term Loan Notes in accordance with their terms.
(c) Borrower's obligations under the Amended Term Loan Notes shall
continue to be secured by the Collateral.
2. Amendments. All of the other provisions of the Loan Agreement shall
remain in full force and effect except as follows:
2
(a) Section 1.1 (Definitions and Accounting Terms) of the Loan
Agreement is modified such that the definition of "Federal Funds Rate" is hereby
deleted and the following is substituted therefor:
"Federal Funds Rate" means, for any day, the rate per annum (rounded,
if necessary, to the next greater 1/16 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by the Federal funds
brokers, as published for such day (or if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or if such rate is not so published for any day which is
a Business Day, the average of such quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
(b) Section 1.1 (Definitions and Accounting Terms) of the Loan
Agreement is further modified such that the following definitions are hereby
deleted in their entirety:
(i) "Subordinated Debentures"
(ii) "Subordinated Notes"
(c) Section 1.1 (Definitions and Accounting Terms) of the Loan
Agreement is further modified such that the definition of "Subordinated Debt" is
hereby deleted and the following is substituted therefor:
"Subordinated Debt" has the meaning set forth in Section 7.5(h).
(d) Section 2.2A (Term Loan A) of the Loan Agreement is modified such
that paragraph (c) is hereby deleted in its entirety and the following is
substituted therefor:
(c) The Borrower shall make equal quarterly payments of principal in
respect to Term Loan A plus accrued interest in accordance with a
fifteen year amortization schedule, commencing April 1, 2003 and
continuing on the first Business Day of each succeeding fiscal quarter
of the Borrower thereafter through and including July 1, 2005 until
the outstanding principal amount of Term Loan A, together with all
interest accrued thereon, has been fully paid, except that if not
sooner paid, the principal amount, together with all accrued but
unpaid interest thereon, shall be due and payable on the Maturity
Date.
(e) Section 2.2B (Term Loan B) of the Loan Agreement is modified such
that paragraph (c) is hereby deleted in its entirety and the following is
substituted therefor:
(c) Commencing April 1, 2003 and continuing on the First Business Day
of each succeeding fiscal quarter of the Borrower thereafter through
and including July 1, 2005, the Borrower shall make equal quarterly
payments of principal, plus accrued interest, in
3
accordance with a seven year amortization schedule, until the
outstanding principal amount of Term Loan B, together with all
interest accrued thereon, has been fully paid, except that if not
sooner paid, the principal amount, together with all accrued but
unpaid interest thereon, shall be due and payable on the Maturity
Date.
(f) Section 7.5 (Certain Financial Terms) of the Loan Agreement is
modified such that paragraph (h) is hereby deleted and the following is
substituted therefor:
(h) "Subordinated Debt" means Indebtedness of the Borrower which is
subordinated in payment and priority to the Debt upon terms and
conditions and pursuant to subordination agreements satisfactory to
the Lenders in their sole discretion.
(g) Section 8.4 (Lenders' Appointment as Attorney-in-fact) of the Loan
Agreement is modified such that the entire section is hereby deleted and the
following is substituted therefor:
8.4 Agent's Appointment as Attorney-in-fact. On the Closing Date the
Borrower shall execute and deliver a Power of Attorney in the form
attached as Exhibit G. The power of attorney granted pursuant to the
Power of Attorney and all powers granted under any Loan Documents are
powers coupled with an interest and shall be irrevocable until the
Maturity Date. The powers conferred on the Agent for the Lenders
under the Power of Attorney are solely to protect Lenders' interests
in the Collateral and shall not impose any duty upon Agent or any
Lender to exercise any such powers. Agent agrees and promises that
(a) it shall not exercise any power or authority granted under the
Power of Attorney unless an Event of Default has occurred and is
continuing, (b) Agent shall only exercise the powers granted under the
Power of Attorney in respect of Collateral, provided, except as
otherwise required by applicable law, Agent and Lenders shall not have
any duty as to any Collateral, and Agent and Lenders shall be
accountable only for amounts that Agent actually receives as a result
of the exercise of such powers. NONE OF AGENT, LENDERS OR THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES
SHALL BE RESPONSIBLE TO THE BORROWER FOR ANY ACT OR FAILURE TO ACT
PURSUANT TO THE POWERS GRANTED UNDER THE POWER OF ATTORNEY OR
OTHERWISE, EXCEPT FOR THEIR OWN GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL
DAMAGES. The Borrower also hereby authorizes Agent and any Lender to
file
4
any financing or continuation statement without the signature of the
Borrower to the extent permitted by applicable law.
3. Waiver. Borrower acknowledges that the actions in connection with
the Sale described in Paragraph C of the Background hereof constitute Events of
Default. Lenders hereby waive the Events of Default arising solely out of the
Borrower's failure to comply with the negative covenants set forth in Sections
6.2 and 6.7 of the Loan Agreement by guaranteeing the payment and performance
obligations of Seller pursuant to the Asset Purchase Agreement and the Guaranty.
4. Reservation of Rights. Lenders hereby reserve all of their rights
and remedies under the Loan Agreement and under applicable law with respect to
any Event of Default other than the Events of Default set forth in Paragraph 3
above, or as otherwise expressly set forth herein. No action or inaction on the
part of the Lenders or Agent shall constitute a waiver of any Event of Default
or of the Lenders' rights and remedies in respect thereof other than as
expressly set forth herein. The granting of such waiver shall not impose or
imply an obligation on the Lenders to grant a waiver on any future occasion.
5. Representations and Warranties. All of the representations,
warranties and covenants contained in the Loan Documents are true and correct on
and as of the date hereof, are incorporated herein by this reference, and are
remade. Without limiting the generality of the foregoing, the Borrower
specifically represents, warrants and covenants that:
(a) Loan Balances. As of the close of business on May 8, 2003 (i)
the principal balance outstanding of the Revolving Loans is $0, plus accrued and
unpaid interest, (ii) the principal balance outstanding of Term Loan A is
$6,883,333.33, plus accrued and unpaid interest, (iii) the principal balance
outstanding of Term Loan B is $9,642,857.14, plus accrued and unpaid interest,
and (iv) the outstanding amount due under all Letters of Credit issued for the
account of the Borrower is $0. All amounts set forth in the preceding sentence
and all costs and expenses thereon are due under the Loan Agreement without
defense, off-set or counterclaim. Borrower acknowledges that it is legally,
validly and enforceably liable to Lenders for all costs and expenses of
collection and attorneys' fees related to or in any way arising out of this
Amendment, the Loan Agreement as amended hereby, the Amended Term Loan Notes,
and the First Amendment to Guarantor Security Agreement referred to in Paragraph
6(c) hereof, and that Borrower has no claims, demands or rights of set-off
against Lenders in connection with the Loans or the Letters of Credit. Borrower
further acknowledges that all indebtedness, liabilities and obligations of
Borrower to Lenders, whenever and however arising including, without limitation,
the Loans, is secured by a first lien on and security interest in the
Collateral. Borrower further acknowledges that in accordance with the terms of
the Loan Agreement, Borrower may borrow, repay and reborrow revolving loan
funds, and accordingly the principal balance of the Revolving Loans may increase
or decrease from time to time.
(b) No Default. Except as set forth in Paragraph 3 above, neither
Borrower nor Seller is in default under the Loan Documents. No event has
occurred which would constitute a Default or an Event of Default.
5
(c) No Liquidation. There are no liquidation or dissolution
proceedings pending or threatened against Borrower or any Secured Guarantor and
no other event has occurred which affects or threatens the corporate existence
of Borrower or any Secured Guarantor.
(d) Advised by Counsel. Borrower acknowledges that (i) it has
been advised by counsel in the negotiation, execution and delivery of this
Amendment, (ii) it has made an independent decision to enter into this Amendment
without reliance on any representation, warranty, covenant or undertaking by
Agent or Lenders, (iii) Lenders have no fiduciary obligation toward Borrower
with respect to this Amendment or the Loan Documents, (iv) the relationship
between Borrower and Lenders pursuant to this Amendment and the Loan Documents
is and shall be solely that of debtor and creditors, respectively, and (v) it
understands the meaning and legal effect of this Amendment.
(e) No Adverse Developments. There has not been any change in the
business or financial condition of Borrower since February 12, 2003 which would
have a Material Adverse Effect or adversely impair the ability of Borrower to
comply with its obligations under the Loan Documents, as amended.
(f) No Litigation. Except as disclosed on Schedule 4.6 to the
Loan Agreement, there are no pending, or to Borrower's knowledge threatened,
proceedings before any court, Governmental Authority, board of arbitration, or
arbitrator to which Borrower or any Guarantor is a party and which would
materially and adversely affect the transactions contemplated by this Amendment
or the Loan Documents or materially and adversely affect Borrower's ability to
conduct its business.
(g) No Conflict. The execution and delivery of this Amendment,
the consummation of the transactions contemplated herein, and the fulfillment of
or compliance with the terms and conditions of this Amendment are not prevented
or limited by, and do not conflict with or result in a breach of the terms,
conditions or provisions of Borrower's Certificate of Incorporation or By-Laws,
any law, rule, regulation, judgment, order or decree applicable to or binding on
the Borrower or any Guarantor or any evidence of indebtedness, agreement or
instrument of any nature to which Borrower or any Guarantor is now a party or by
which Borrower or any Guarantor is bound, nor constitute a default under any of
the foregoing.
(h) No Violation of Law. To the best of its knowledge, neither
the Borrower nor any Guarantor is in violation of any federal, state or local
law, regulation or order, which violation would have a Material Adverse Effect
and Borrower has not received any notice of any such violation.
(i) Corporate Authority. The Borrower has full corporate power
and authority to enter into and perform its obligations under this Amendment,
the Loan Agreement as amended hereby and the Amended Term Loan Notes, and to
incur the obligations provided for herein and therein, all of which have been
duly authorized by all necessary and proper corporate
6
action. No other consent or approval, or the taking of any other action in
respect of shareholders, members or any public authority, is required as a
condition to the validity or enforceability of this Amendment, the Loan
Agreement as amended hereby, the Amended Term Loan Notes or any of the other
Loan Documents.
6. Conditions Precedent. Lenders' obligations hereunder are subject
to the satisfaction as of the date of this Amendment of each of the following
conditions precedent which shall be in form, scope and substance satisfactory to
Lenders and their counsel:
(a) Evidence of Corporate Action. Lenders shall have received
certified copies of all Board of Director resolutions adopted by Borrower to
authorize the execution, delivery and performance of this Amendment, together
with copies of all amendments to Borrower's Certificate of Incorporation and
By-Laws adopted since February 12, 2003, and such other papers as Agent or its
counsel may reasonably require.
(b) Amendment and Waiver Fee. In consideration for entering into
this Amendment, the Borrower shall have paid to the Agent for the benefit of
Lenders, upon execution of this Amendment, a fee in the amount of $27,500.00.
(c) First Amendment to Guarantor Security Agreement. Lenders
shall have received an executed First Amendment to Guarantor Security Agreement
of even date herewith from the Secured Guarantors, amending the description of
collateral securing the Loans.
(d) Amended Term Loan Notes. Lenders shall have received the
Amended Term Loan Notes duly executed and drawn to each Lender's respective
order as appropriate.
(e) Legal Fees. Borrower shall have reimbursed Agent for the
reasonable legal fees of Xxxxxxx & Xxxxxxx LLP, counsel to Agent, in connection
with the negotiation, review, execution and delivery of all of the documents
prepared with respect to the transactions contemplated herein, plus related
disbursements.
(f) Certificate of Qualification To Do Business. Lenders shall
have received a current Certificate of Qualification to Do Business as a foreign
corporation for Seller from the Secretary of State of Iowa.
(g) Other. Borrower shall have delivered to Lenders such other
documents as Agent or its counsel reasonably require.
7. Notices. All notices, requests, consents, demands and other
communications hereunder shall be in writing and shall be mailed by registered
or certified first class mail or delivered by an overnight courier to the
respective parties to this Amendment as set forth in the Loan Agreement.
8. Governing Law. This Amendment shall be governed and controlled by
the internal laws of the State of Connecticut.
7
9. Amendment and Restatement. Upon the execution of this Amendment,
the Loan Agreement and the other Loan Documents are restated to the extent that
this Amendment restates them and are amended to the extent that this Amendment
amends them. Except as specifically amended by the terms of this Amendment, the
Amended Term Loan Notes or the First Amendment to Guarantor Security Agreement,
all terms and conditions set forth in the Loan Documents, together with all
schedules and exhibits attached thereto, shall remain in full force and effect.
This Amendment, to the extent that it is inconsistent with the Loan Documents,
supersedes the Loan Documents and any and all prior written or oral amendments
of the Loan Documents.
10. Waiver of Prejudgment Remedy. THE BORROWER ACKNOWLEDGES AND
AGREES THAT THE TRANSACTIONS ARE COMMERCIAL TRANSACTIONS AND IT HEREBY WAIVES
ANY RIGHT TO NOTICE AND HEARING AS MAY BE ALLOWED UNDER CHAPTER 903a OF THE
CONNECTICUT GENERAL STATUTES, AS AMENDED, OR AS OTHERWISE ALLOWED BY ANY STATE
OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY AND PREJUDGMENT REMEDY
WITHOUT COURT ORDER, PROVIDED THE COMPLAINT SETS FORTH A COPY OF THE WAIVER AND
WAIVES ANY CLAIM IN TORT, CONTRACT OR OTHERWISE AGAINST LENDERS' ATTORNEYS WHICH
MAY ARISE OUT OF SUCH ISSUANCE OF A WRIT FOR A PREJUDGMENT REMEDY WITHOUT COURT
ORDER. FURTHER, TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, BORROWER HEREBY
WAIVES DEMAND, PRESENTMENT FOR PAYMENT, PROTEST, NOTICE OF PROTEST, NOTICE OF
DISHONOR, DILIGENCE IN COLLECTION, NOTICE OF NONPAYMENT OF ANY NOTE AND ANY AND
ALL NOTICES OF A LIKE NATURE. THE BORROWER ACKNOWLEDGES THAT IT MAKES THIS
WAIVER KNOWINGLY, VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
11. Waiver of Jury Trial and Consequential Damages.
(a) THE BORROWER AND THE LENDERS EACH HEREBY EXPRESSLY WAIVES ANY AND
ALL RIGHTS IT MAY HAVE TO TRIAL BY JURY IN ANY COURT OF ANY CLAIM, DEMAND,
ACTION, OR CAUSE OF ACTION (1) ARISING UNDER THIS AMENDMENT OR ANY OTHER
INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AMENDMENT OR ANY OTHER
INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
THE BORROWER AND THE LENDERS EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THE AGENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
8
SECTION 10(a) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH OF THEM
TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY. THE BORROWER AND THE LENDERS EACH
ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY, VOLUNTARILY AND WITHOUT
DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS
WAIVER WITH ITS ATTORNEYS.
(b) NONE OF THE AGENT, ANY LENDER, BORROWER, OR ANY AGENT OR ATTORNEY
OF EITHER OF THEM SHALL BE LIABLE TO ANY OF THE OTHERS FOR PUNITIVE OR
CONSEQUENTIAL DAMAGES ARISING FROM ANY BREACH OF CONTRACT, TORT, OR OTHER WRONG
RELATING TO THE ESTABLISHMENT, ADMINISTRATION, OR COLLECTION OF THE OBLIGATIONS
RELATING IN ANY WAY TO THIS AMENDMENT, THE NOTES, OR ANY OF THE OTHER LOAN
DOCUMENTS, OR THE ACTION OR INACTION OF ANY OF SUCH PERSONS UNDER ANY ONE OR
MORE HEREOF OR THEREOF.
(c) IN THE EVENT THE AGENT SEEKS TO TAKE POSSESSION OF ANY OR ALL OF
THE COLLATERAL BY COURT PROCESS OR OTHER METHOD AVAILABLE UNDER THE LAW,
BORROWER IRREVOCABLY WAIVES ANY BOND AND ANY SURETY OR SECURITY RELATING THERETO
REQUIRED BY ANY STATUTE, COURT RULE OR OTHERWISE AS AN INCIDENT TO SUCH
POSSESSION, AND WAIVES ANY DEMAND FOR POSSESSION PRIOR TO THE COMMENCEMENT OF
ANY SUIT OR ACTION TO RECOVER WITH RESPECT THERETO. BORROWER FURTHER WAIVES THE
BENEFIT OF ALL VALUATION, APPRAISEMENT AND EXEMPTION LAWS.
[Signature Page to Follow]
9
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date first written above.
BORROWER:
TRANS-LUX CORPORATION
By:/s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
Its: Executive Vice President
AGENT:
PEOPLE'S BANK
By:/s/ Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx
Its: Vice President
LENDERS:
THE BANK OF NEW YORK
By:/s/ J. Xxxxx Xxxxxx
--------------------------------
J. Xxxxx Xxxxxx
Its: Vice President
PEOPLE'S BANK
By:/s/ Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx
Its: Vice President
10
