AMENDMENT NO. 16 TO AMENDED AND RESTATED COMMERCIAL LOAN AND
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SECURITY AGREEMENT AND WAIVER AGREEMENT
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This AMENDMENT NO. 16 TO AMENDED AND RESTATED COMMERCIAL LOAN AND SECURITY
AGREEMENT AND WAIVER AGREEMENT (this "Agreement") is made as of the 1st day of
May, 2011, 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").
W I T N E S S E T H:
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, as further amended by a certain Amendment No. 8 to
Amended and Restated Commercial Loan and Security Agreement dated as of May 20,
2008, as further amended by a certain Amendment No. 9 to Amended and Restated
Commercial Loan and Security Agreement dated as of July 16, 2008, as further
amended by a letter agreement dated August 13, 2008, as further amended by a
letter agreement dated November 14, 2008, as further amended by a letter
agreement dated November 20, 2008, as further amended by a certain Amendment No.
13 to Amended and Restated Commercial Loan and Security Agreement and Waiver
Agreement dated as of September 4, 2009, as further amended by a certain
Amendment No. 14 to Amended and Restated Commercial Loan and Security Agreement
and Waiver Agreement dated as of April 2, 2010, and as further amended by a
certain Amendment No. 15 to Amended and Restated Commercial Loan and Security
Agreement and Waiver Agreement dated as of August 1, 2010 (collectively, the
"Prior Amendments"); WHEREAS, in addition to the Prior Amendments, the Original
LSA was also amended by a letter agreement dated April 20, 2009 and a letter
agreement dated August 14, 2009 (collectively, the "2009 Letter Agreements")
(the Original LSA, as amended by the Prior Amendments and the 2009 Letter
Agreements 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");
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, each Secured Guarantor has granted
to the Lender a lien on and security interest in all of 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 to (i) extend the maturity date of the Revolving Loans and the
Converted Term Loan to November 1, 2011; (iii) add Trans-Lux Southwest
Corporation, a New Mexico corporation and Trans-Lux Energy Corporation, a
Connecticut corporation: and (iv) amend and modify certain other covenants all
as more particularly set forth herein, 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, 2011 the Borrower is legally and validly indebted to
the Lender: (A) by virtue of the Revolving Loan in the principal outstanding
amount of $3,960,000.00, and (B) by virtue of the Converted Term Loan in the
principal amount of $770,833.00, 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 and there is no defense, offset or counterclaim with
respect thereto or independent claim or action against the Lender.
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(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 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,
and except that Schedule 1 and Schedule 4.13 to the LSA are also hereby updated
and replaced as more particularly set forth herein below..
(ix) After giving effect to the waivers set forth herein, no Default
currently exists under the LSA, the Guaranty 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.
(xi) Each of the Theater Business Guarantors (as defined below) were
part of the Borrower's theater business division; the assets of each of the
Theater Business Guarantors were sold pursuant to a certain Asset Purchase
Agreement dated July 7, 2008 among Marwit Capital Partners II, L.P. and the
Borrower; and each of the Theater Business Guarantors have either been dissolved
or merged into another Guarantor. For purposes hereof, "Theater Business
Guarantors" means Trans-Lux Durango Corporation, Trans-Lux Four Corners
Corporation,
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Trans-Lux Los Lunas Corporation, Trans-Lux Summit Corporation, Trans-Lux Taos
Corporation, Trans-Lux Valley Corporation, Trans-Lux Wyoming Corporation,
Trans-Lux Castle Rock Corporation, 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, and Trans-Lux Cinema Consulting Corporation.
2. Amendment of LSA and other Loan Documents.
a. Section 1.1 of the LSA entitled "Defined Terms" is amended as follows:
(i) by adding the following new definitions in alphabetical order:
"Additional Guarantors" means: (i) Trans-Lux Southwest
Corporation, a New Mexico corporation, and (ii) Trans-Lux Energy Corporation, a
Connecticut corporation.
"Existing Guarantors" means all of the Subsidiaries listed on
Schedule 1 attached hereto (other than the Additional Guarantors).
(ii) by deleting the definition of "Guarantors" set forth therein in
its entirety and by substituting the following therefor:
"Guarantors" means the Existing Guarantors, the Additional
Guarantors and all other Subsidiaries which become Guarantors as required
pursuant to Section 5.17 hereof.
(iii) by deleting the definition of "Guaranty" set forth therein in
its entirety and by substituting the following therefor:
"Guaranty" means: (i) the Amended and Restated Unlimited
Guaranty of each of the Existing Guarantors dated as of December 23, 2004 in the
form of Exhibit F attached hereto, and (ii) the Unlimited Guaranty of the
Additional Guarantors dated as of May 1, 2011 in the form of Exhibit F-1
attached hereto.
(iv) 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 Converted Term
Loan, November 1, 2011; and (ii) with respect to all outstanding
Revolving Loans, November 1, 2011.
(v) by deleting the definition of "Termination Date" set forth therein
in its entirety and by substituting the following therefor:
"Termination Date" means: (i) with respect to the Line of Credit
Commitment December 31, 2006; and (ii) with respect to the Revolving
Loan Commitment, November 1, 2011.
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b. Article 2 of the LSA entitled "AMOUNTS AND TERMS OF LOANS" is hereby
amended as follows:
(i) by amending Section 2.4 entitled "Conversion to the Converted Term
Loan" by deleting subsection (b) therein 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 Fourth Amended and Restated
Converted Term Loan Promissory Note of the Borrower dated as of May 1,
2011 in the original principal amount of $770,833.00, a copy of which
is attached hereto as Exhibit D (such promissory note is referred to
herein as the "Converted Term Note"), which Converted Term Note
amends, restates, supersedes and replaces in its entirety that certain
Third Amended and Restated Converted Term Loan Promissory Note of the
Borrower dated as of August 1, 2010 in the original principal amount
of $1,070,833.00 (the "Existing Converted Term Note"), provided,
however, that the amendment, restatement and replacement of the
Existing Converted Term Note shall in no way be construed as a
novation of the Borrower's indebtedness evidenced by the Existing
Converted Term Note."
c. Article 7 of the LSA entitled "FINANCIAL COVENANTS" is hereby amended
as follows:
(i) by amending and restating Section 7.4A entitled "Senior Debt
Coverage Ratio" in its entirety as follows: the following new Section
immediately after Section 7.4:
"Section 7.4A Senior Debt Coverage Ratio. Maintain as of the end of
each fiscal quarter of the Borrower commencing with the fiscal quarter
ending September 30, 2011, in each case for the then ended year-to date
period, a ratio of (a) Net Profits for such period, plus depreciation and
amortization expense of the Borrower and its Subsidiaries for such period,
plus Interest Expense for such period, minus Non-Financed Capital
Expenditures for such period, minus total dividends and shareholder
distributions made by Borrower and its Subsidiaries during such period
divided by (b) Current Maturities of Long-Term Debt with respect to all
Senior Debt for such period, plus Interest Expense on all Senior Debt for
such period, of not less than 1.0-to-1.0."
d. Exhibit D to the LSA is hereby deleted in its entirety and a copy of
the Fourth Amended and Restated Converted Term Loan Promissory Note of the
Borrower in favor of the Lender dated as of May 1, 2011 in the original
principal amount of $770,833.00, a copy of which is attached hereto as Exhibit A
(the "Fourth Amended and Restated Converted Term Note") is hereby substituted
therefor.
e. The Unlimited Guaranty of the Additional Guarantors in the form of
Exhibit B attached hereto is hereby attached to the LSA as Exhibit F-1 (the
"Additional Guarantor Guaranty").
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f. Schedule 1 (Guarantors) to the LSA is hereby amended, restated and
replaced in its entirety with the schedule attached hereto as Schedule 1.
g. Schedule 4.13 (Capital Stock of Guarantors) to the LSA is hereby
amended, restated, and replaced in its entirety with the schedule attached
hereto as Schedule 4.13.
h. 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; (ii) the
Converted Term Note shall refer to and mean the Fourth Amended and Restated
Converted Term Loan Promissory Note of the Borrower in favor of the Lender dated
as of May 1, 2011, in the original principal amount of $770,833.00, a copy of
which is attached hereto as Exhibit A, and (iii) the Guaranty shall refer to and
mean (A) the Amended and Restated Unlimited Guaranty of each of the Guarantors
dated as of December 23, 2004 in the form attached to the LSA as Exhibit F and
(B) the Unlimited Guaranty of the Additional Guarantors dated as of May 1, 2011,
a copy of which is attached hereto as Exhibit B.
3. Waiver of Covenant Default. At the request of the Borrower, the Lender has
agreed to waive certain existing and prospective covenant defaults of Borrower
under the LSA as follows:
a. The Borrower is currently in default under the Senior Debt Coverage
Ratio set forth in Section 7.4A of the LSA for the test period of the Borrower
ending December 31, 2010 (the "Financial Covenant Default") and the Lender
hereby waives the Financial Covenant Default for the test period ending December
31, 2010 (the "Financial Covenant Default Waivers").
b. The Obligors acknowledge that one or more of them have failed to make
certain pension plan contributions which were due on April 15, 2011 (the
"Pension Plan Contribution Defaults") and, that as a result thereof, there has
occurred an Event of Default under the LSA. In addition, the Obligors further
acknowledge that one or more of them do not expect to make certain pension plan
contributions which are due on July 15, 2011 (the "Anticipated Pension Plan
Contribution Defaults") and, that if such contributions are not made, there
shall occur an Event of Default under the LSA. Subject to the proviso herein
below, the Lender hereby agrees to waive such Pension Plan Contribution Defaults
with respect to the April 15, 2011 payment date and to prospectively waive the
Anticipated Pension Plan Contribution Defaults with respect to the July 15, 2011
payment date, provided, however, that in the event that the IRS or any other
Governmental Authority takes any enforcement action or otherwise exercises any
rights and remedies it may have against any Obligor with respect to such Pension
Plan Contribution Defaults and/or such Anticipated Pension Plan Contribution
Defaults (any such enforcement action or exercise of rights and remedies being
referred to as a "Pension Plan Enforcement Action"), any such Pension Plan
Enforcement Action shall constitute a separate and distinct Event of Default
under and within the meaning of the LSA which shall entitle the Lender to
exercise any and all of its rights and remedies thereunder and at law.
c. By their signatures below, each of the Obligors hereby acknowledges and
agrees that the Financial Covenant Default Waiver and the waivers set forth in
Section 3.b. above are
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one-time waivers for the period or dates specifically specified above and that
the execution, delivery and effectiveness of this Agreement shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the Lender under the LSA or any of the other Loan Documents, nor constitute or
be construed or interpreted, directly or by implication, as a waiver of or an
amendment or modification to any other obligation of any Obligor to the Lender
under the LSA or any of the other Loan Documents.
4. Conditions to Effectiveness. The effectiveness of this Agreement is subject
to the prior satisfaction of the following conditions precedent (the date of
such satisfaction herein referred to as the "Amendment Effective Date"):
a. The representations and warranties of the Obligors contained herein
shall be true and correct in all material respects.
b. There shall exist no Default or Event of Default.
c. The Lender shall have received evidence satisfactory to the Lender that
all requisite corporate and company action necessary for the valid execution,
delivery and performance by each of the Obligors of this Agreement and all other
instruments and documents delivered by the Obligors, or any one of them, in
connection herewith has been taken.
d. Borrower shall execute and deliver to the Lender the Fourth Amended and
Restated Converted Term Note.
e. The Additional Guarantors shall execute and deliver to the Lender the
Additional Guarantor Guaranty.
f. In connection with the amendments and waiver contemplated by this
Agreement, the Borrower shall have paid to the Lender a non-refundable amendment
fee in an amount of $3,500.00 (the "Amendment and Waiver Fee").
5. Post Closing Conditions. Within ten (10) Business Days of the date hereof,
the Lender shall have received: (i) authorizing resolutions with respect to
each Additional Guarantor with respect to the Additional Guarantor Guaranty, (b)
copies of the certificate of incorporation and bylaws of each of the Additional
Guarantors, (c) a secretary's certificate including an incumbency certification
for each Additional Guarantor, (d) certificates of good standing or legal
existence, as applicable, for each Additional Guarantor, and (e) such other
corporate and other due diligence matters pertaining to each of the Additional
Guarantors as the Lender may require, each of which shall be in form and content
satisfactory to the Lender in its sole discretion. The failure to deliver any
of the forgoing items within the stated time shall constitute an Event of
Default under the LSA.
6. 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 Fourth Amended and Restated Converted Term Note), the LSA, the
Guaranty, the Notes 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
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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.
7. Fees and Expenses. In addition to the Amendment and Waiver Fee, the
Borrower agrees to pay all reasonable legal fees and expenses of Lender incurred
in connection with the preparation, negotiation and execution of this Agreement.
8. 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).
9. 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.
10. Capitalized Terms. All capitalized terms not otherwise defined in this
Agreement shall have the meanings ascribed to such terms in the LSA.
11. Benefit. This Agreement shall inure to the benefit of and bind the parties
hereto and their respective successors and assigns.
[NEXT PAGE IS A 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/ Witness
------------------------ TRANS-LUX CORPORATION
/s/ Witness 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 COMMERCIAL CORPORATION
(f/k/a Trans-Lux West Corporation)
TRANS-LUX SERVICE CORPORATION
TRANS-LUX MONTEZUMA CORPORATION
TRANS-LUX REAL ESTATE CORPORATION
TRANS-LUX MULTI-MEDIA CORPORATION
TRANS-LUX LOVELAND CORPORATION
/s/ Witness TRANS-LUX MOVIE OPERATIONS CORPORATION
------------------------ TRANS-LUX MULTIMEDIA CORPORATION
/s/ Witness By: /s/ Xxxxxx X. Xxxxx
------------------------ -----------------------------------
Name: Xxxxxx X. Xxxxx
Its: Executive Vice President
/s/ Witness PEOPLE'S UNITED BANK (formerly known as
------------------------ People's Bank)
/s/ Witness By: /s/ Xxxxxx X. Xxxxxxx
------------------------ -----------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Reg. Mgr. & SVP
Duly Authorized
[Signature Page (1) to Amendment No. 16 to Amended and Restated
Commercial Loan and Security Agreement and Waiver Agreement]
