Exhibit 10.2
SECOND AMENDMENT TO AMENDED AND RESTATED FORBEARANCE AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED FORBEARANCE AGREEMENT
(this "Amendment") is made and entered into as of this 10th day of January,
2003, among Advanced Lighting Technologies, Inc., Venture Lighting Power Systems
North America Inc., Parry Power Systems Limited, and Venture Lighting Europe
Ltd. (collectively, "Borrowers"), PNC Bank, National Association, as Agent
("Agent") and PNC Bank, National Association, National City Commercial Finance,
Inc. and Sovereign Bank (collectively, "Lenders"). Capitalized terms used herein
without definition have the meanings ascribed thereto in the Amended and
Restated Forbearance Agreement among the parties hereto dated October 18, 2002
(the "Forbearance Agreement").
RECITALS
A. Borrowers, Agent and Lenders entered into the Forbearance Agreement
on October 18, 2002, which Forbearance Agreement was amended by the Amendment to
Forbearance Agreement among Borrowers, Agent and Lenders dated November 19, 2002
(together with the Forbearance Agreement, the "Amended Forbearance Agreement").
B. The Amended Forbearance Agreement provided for a Forbearance Period
expiring March 31, 2003, provided that the conditions to forbearance set forth
in Section 2 thereof were satisfied. Borrower has advised Agent and Lenders that
it has failed to satisfy the conditions to Agent's and Lenders' continued
forbearance, including, without limitation, the conditions set forth in Sections
2(g)(ii),(v) and (vi). Borrowers acknowledge that the Forbearance Period has
expired in accordance with the terms of the Amended Forbearance Agreement and
that Agent and Lenders have the right at any time to exercise their rights and
remedies under the Credit Agreement, the Security Documents and other Related
Writings.
C. Notwithstanding the failure of Borrowers to satisfy the conditions
to the Agent's and Lenders' forbearance as set forth in the Amended Forbearance
Agreement, Borrowers now request that Agent and Lenders again agree to continue
to make Revolving Loans and to forbear for an additional period of time from
exercising their rights and remedies under the Credit Agreement, the Security
Documents and other Related Writings.
D. Agent and Lenders are willing to enter into this Amendment and to
agree to provide an additional Forbearance Period to Borrowers, on the terms and
subject to the conditions set forth in this Amendment.
AGREEMENT
In consideration of the Recitals and of the mutual promises and
covenants contained herein, Lenders and Borrowers agree as follows:
1. DESIGNATED DEFAULTS. Exhibit A to the Amended Forbearance Agreement
is hereby deleted and EXHIBIT A hereto substituted in lieu thereof. Borrowers
represent and warrant that all Unmatured Events of Default and Events of Default
under the Credit Agreement are set forth on EXHIBIT A (the "Designated
Defaults").
2. FORBEARANCE PERIOD. Section 1(a) of the Amended Forbearance
Agreement is hereby amended to delete the date "March 31, 2003" and insert in
lieu thereof "January 23, 2003."
3. CONDITIONS TO FORBEARANCE MODIFIED. Section 2(g) of the Amended
Forbearance Agreement is hereby amended as follows:
(a) Section 2(g)(ii) is hereby amended to add at the end thereof the
following proviso: "provided, however, that the failure of Borrowers to actively
pursue a Sale Transaction from November 19, 2002, to January 23, 2003, shall not
constitute a violation of the condition contained in this Section 2(g)(i)."
(b) Section 2(g)(v) is hereby amended to delete the reference to
"December 31, 2002" and insert in lieu thereof "January 23, 2003".
(c) Section 2(g)(vi) is hereby amended to delete the reference to
"December 31, 2002" and insert in lieu thereof "January 23, 2003".
4. ADDITIONAL CONDITIONS TO FORBEARANCE. Section 2 of the Amended
Forbearance Agreement is further amended to add as additional subsections
thereto the following:
"(p) a list of potential asset sales and capital dispositions,
including the estimated proceeds of any such sale or disposition, shall be
provided by Borrowers to Agent and Lenders concurrently with the execution
hereof;
(q) a debtor-in possession financing budget, reflecting Borrowers' best
and good faith estimate of financing needs, shall be provided by Borrowers to
Agent and Lenders not later than January 13, 2003; and
(r) all Loans and other Obligations under the Credit Agreement to Agent
and Lenders shall be paid in full not later than January 23, 2003."
5. REPRESENTATIONS. The Recitals contained herein are true and correct.
There are no Unmatured Events of Default or Events of Default other than the
Designated Defaults.
6. INTEGRATION. Except as set forth in Sections 1, 2, 3 and 4 hereof,
the Amended Forbearance Agreement remains in full force and effect and is
integrated in its entirety into this
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Amendment. References in the Amended Forbearance Agreement to "this Agreement"
are hereby deemed to include this Amendment.
7. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be executed
in any number of counterparts and by different parties to this Amendment on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and the same agreement.
Any signature delivered by a party by facsimile transmission shall be deemed to
be an original signature hereto.
8. RELEASE OF CLAIMS AND WAIVER. Borrowers and U.S. Guarantors hereby
release, remise, acquit and forever discharge Agent and Lender and Agent's and
Lenders' employees, agents, representatives, consultants, attorneys,
fiduciaries, servants, officers, directors, partners, predecessors, successors
and assigns, subsidiary corporations, parent corporations, and related corporate
divisions (all of the foregoing hereinafter called the "Released Parties"), from
any and all actions and causes of action, judgments, executions, suits, debts,
claims, demands, liabilities, obligations, damages and expenses of any and every
character, known or unknown, direct and/or indirect, at law or in equity, of
whatsoever kind or nature, whether heretofore or hereafter arising, for or
because of any matter or things done, omitted or suffered to be done by any of
the Released Parties prior to and including the date of execution hereof, and in
any way directly or indirectly arising out of or in any way connected to this
Amendment, the Forbearance Agreement, the Credit Agreement, the Security
Documents and other Related Writings (all of the foregoing hereinafter called
the "Released Matters"). Borrowers and U.S. Guarantors acknowledge that the
agreements in this paragraph are intended to be in full satisfaction of all or
any alleged injuries or damages arising in connection with the Released Matters.
Each of the Borrowers and U.S. Guarantors represent and warrant to Lenders and
Agent that it has not purported to transfer, assign or otherwise convey any
right, title or interest of Borrowers or U.S. Guarantors in any Released Matter
to any other Person and that the foregoing constitutes a full and complete
release of all Released Matters.
9. LEGAL REPRESENTATION OF PARTIES. This Amendment was negotiated and
agreed to by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring this Amendment or any
other Loan Document to be construed or interpreted against any party shall not
apply to any construction or interpretation hereof or thereof.
10. INTEGRATION. Except with respect to the amendment to Exhibit A of
the Forbearance Agreement as set forth in Section 1 of this Amendment, the
Forbearance Agreement remains in full force and effect and is integrated in its
entirety into this Amendment. References in the Forbearance Agreement to "this
Agreement" are hereby deemed to include this Amendment.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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11. GOVERNING LAW. This Amendment is governed by the laws of the State
of Ohio.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
U.S. BORROWER:
Address: 00000 Xxxxxx Xxxx ADVANCED LIGHTING
Xxxxx, Xxxx 00000 TECHNOLOGIES, INC.
Attention: Treasurer
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Title: Chief Financial Officer
--------------------------------
CANADIAN BORROWER:
Address: 00 Xxxxxxxx Xxxx VENTURE LIGHTING POWER
P.O. Box 250 SYSTEMS NORTH AMERICA, INC.
Xxxxxxx, Xxxx Xxxxxx XX0 0X0
Attention: Treasurer
By: /s/ R. Xxxxxxx Xxxxxx
-----------------------------------
Title: VP - Finance and Administration
--------------------------------
UK BORROWERS:
Address: Xxxxxxxx Xxxxx PARRY POWER SYSTEMS XXXXXXX
Xxxxxxxx
Xxxxx XX00 0XX Xxxxxxx
Attention: Treasurer By: /s/ X. Xxxxx
-----------------------------------
Title: Director
--------------------------------
Address: Xxxxxxxx Xxxxx VENTURE LIGHTING EUROPE LTD.
Xxxxxxxx
Xxxxx XX00 0XX Xxxxxxx
Attention: Treasurer By: /s/ X. Xxxxx
-----------------------------------
Title: Director
--------------------------------
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AGENT AND THE BANKS:
Address: PNC Bank, National Association PNC BANK, NATIONAL ASSOCIATION,
1 PNC Plaza as Agent and as a Bank
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx, Xx. By:
-----------------------------------
Title:
--------------------------------
Address: Sovereign Bank SOVEREIGN BANK
Xxxxxx 0 & 000-Xxxxxx Xxx
Xxxxxxxxx, XX 00000
Mailcode 20-536-ARO By:
Attention: Xxxxxxx Geld -----------------------------------
Title:
--------------------------------
Address: National City Commercial NATIONAL CITY COMMERCIAL
Finance, Inc. FINANCE, INC.
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxx By:
-----------------------------------
Title:
--------------------------------
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CONSENT OF GUARANTOR
The undersigned are the U.S. Guarantors referred to in the Credit
Agreement. The undersigned do hereby consent to the terms of this Amendment and
do hereby ratify and confirm the Guaranty of Payment in all respects. The
undersigned further specifically consent to and join in the agreements, waivers
and releases contained this Amendment.
ADLT Realty Corp. I, Inc.
ADLT Services, Inc.
APL Engineered Materials, Inc.
Ballastronix (Delaware, Inc.)
Lighting Resources International, Inc.
Microsun Technologies, Inc.
Venture Lighting International, Inc.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
of each of the companies listed above
Deposition Sciences, Inc.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
signing for each of the companies listed above
by Power of Attorney
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EXHIBIT A
EVENTS OF DEFAULT
An Event of Default under Section 7.2 of the Credit Agreement due to a violation
of Section 5.7(a) (fixed charge coverage ratio) for the period ending and at
June 30, 2002.
An Event of Default under Section 7.11 of the Credit Agreement due to the
non-payment of interest due September 16, 2002, under the Indenture.
An Event of Default under Section 5.3(a) and Section 5.3(c) as to failure to
deliver annual financial statements for the fiscal year ended June 30, 2002 and
the required certificate as required by Section 5.3(a) and Section 5.3(c).
An Event of Default under Section 7.2 of the Credit Agreement due to a violation
of Section 5.7(a) (fixed charge coverage ratio) for the period ended and at
September 30, 2002.
An Event of Default under Section 7.7 (Change of Control) and subsection (a) of
Section 7.11 (Indenture) of the Credit Agreement arising as a result of the
Second Occurrence Failure under, and as defined in, that certain Contingent
Warrant Agreement dated September 30, 1999, among U.S. Borrower, General
Electric Company, Xxxxx X. Hellman, Hellman, Ltd., Xxxxx X. Xxxxxxx, as voting
trustee under Voting Trust Agreement dated October 10, 1995, Xxxx X. Xxxx, and
Xxxx X. Xxxx, as voting trustee under Voting Trust Agreement dated January 2,
1998.
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