EXHIBIT 10.6
FIRST AMENDMENT TO SETTLEMENT AGREEMENT
This Amendment (this "Amendment") to the Settlement Agreement dated as
of January 5, 2004 (the "Settlement Agreement"), is made and entered into as of
the 19th day of February, 2004, by and among Advanced Lighting Technologies,
Inc. ("ADLT"), Xxxxx X. Xxxxxxx ("Xxxxxxx") and Saratoga Lighting Holdings LLC
("Saratoga"). The above-named persons and entities are sometimes hereinafter
collectively referred to as the "Parties" and individually referred to as a
"Party." Unless otherwise defined herein, capitalized terms herein shall have
the meanings given to those terms in the Settlement Agreement.
RECITALS
1. On January 8, 2004, the Bankruptcy Court entered an order
approving the Settlement Agreement.
2. Pursuant to the Settlement Agreement, the Xxxxxxx Loan
Documents (as amended pursuant thereto, the "Amended Xxxxxxx Loan Documents")
were modified to reduce the amount of the Xxxxxxx Loan to $4,144,500 (the
"Designated Amount").
3. The Settlement Agreement also provided that Xxxxxxx would
partially prepay the Xxxxxxx Loan (prior to and independent of determination of
the Designated Amount) by, among other things, transferring to ADLT his interest
in H&F V, LLC ("H&F V"). This provision of the Settlement Agreement assumed that
the value of Xxxxxxx'x H&F V interest was not included in the calculation of the
Designated Amount.
4. Thereafter, Xxxxxxx transferred his H&F V interest to ADLT. At
that time, however, the Parties discovered that the value of that interest had
in fact been included in the Designated Amount. The expert report prepared by
BGL, which was previously approved by the Independent Directors in connection
with their investigation of Xxxxxxx'x personal assets and liabilities, valued
Xxxxxxx'x H&F V interest at $121,000.
5. By including the value of Xxxxxxx'x H&F V interest in the
Designated Amount, and by also requiring Xxxxxxx to partially prepay the Xxxxxxx
Loan by transferring his H&F V interest to ADLT prior to determination of the
Designated Amount, the Designated Amount figure ($4,144,500) in the Settlement
Agreement is overstated by $121,000.
6. To remedy this inconsistency in the Settlement Agreement, the
Parties have agreed, subject to Bankruptcy Court approval, to amend the
Settlement Agreement and the Amended Xxxxxxx Loan Documents as set forth below.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt,
adequacy and sufficiency of which is acknowledged, the Parties agree as follows:
1. Incorporation of Recitals. Each of the Parties represents and
warrants that each of the above Recitals is true and correct to the best of such
Party's knowledge, information and belief, and such Recitals are incorporated
herein as part of this Amendment.
2. Bankruptcy Court Approval. The Parties expressly acknowledge
that this Amendment is subject to approval by the Bankruptcy Court, and agree to
use their best efforts and good faith to obtain such approval. Pursuant thereto,
the Debtors shall file a motion requesting that the Bankruptcy Court approve
this Amendment (the "Motion").
3. Effective Date. The "Effective Date" of this Amendment shall
be the eleventh (11th) day after the Bankruptcy Court enters a final,
non-appealable order granting the Motion and authorizing ADLT to enter into this
Amendment.
4. Amendment to Settlement Agreement. The Parties agree that the
Settlement Agreement is amended to reduce the Designated Amount by $121,000, to
$4,023,500, to give Xxxxxxx proper credit for the transfer of his H&F V interest
to ADLT. Other than this modification, the Settlement Agreement shall remain in
full force and effect, and each Party
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expressly acknowledges, agrees and reaffirms the validity and enforceability of
the Settlement Agreement.
5. Amended Loan Agreement. The Parties agree to enter into the
Fifth Amendment to Loan Agreement, Secured Promissory Note and Security
Agreement (the "Amended Loan Agreement") in substantially the form attached to
this Amendment as Exhibit 1. The Amended Loan Agreement shall modify the Amended
Xxxxxxx Loan Documents by reducing the outstanding amount of the Xxxxxxx Loan to
the adjusted Designated Amount of $4,023,500. Other than this modification, the
Amended Xxxxxxx Loan Documents shall remain in full force and effect, and each
Party expressly acknowledges, agrees and reaffirms the validity and
enforceability of each of the Amended Xxxxxxx Loan Documents.
6. Additional Documents and Acts. Each Party shall execute or
procure and deliver to the other Parties such additional documents and shall
perform such acts as shall reasonably be necessary to evidence or effectuate the
terms of this Amendment.
7. Headings. The paragraph headings used in this Amendment are
for convenience of reference only and do not in any way limit or amplify the
terms and provisions hereof.
8. Complete Agreement. This Amendment, the Settlement Agreement,
the Amended Loan Agreement, any additional documents executed in connection with
this Amendment and the Amended Xxxxxxx Loan Documents constitute a single,
integrated written contract that expresses the entire agreement of the Parties
with respect to the matters contained herein and supersedes all negotiations,
prior discussions and preliminary agreements, either oral or written. Any
further amendment to the Parties' agreement shall be effective only if it is in
writing, is signed by the Party to be charged or otherwise adversely affected by
it, and is approved by a final, non-appealable order of the Bankruptcy Court.
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9. Counterpart Signatures. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which, when taken together, shall constitute one and the same instrument. This
Amendment shall constitute a binding, enforceable agreement after all Parties
have signed and executed this Amendment and after the Bankruptcy Court has
entered a final, non-appealable order approving this Amendment.
10. Interpretation of Amendment. In interpreting this Amendment,
each of the Parties expressly agrees that the Amendment was prepared by all of
the Parties jointly, and that no ambiguity shall be resolved against any Party
on the basis that it was responsible, or primarily responsible, for having
drafted the Amendment. In addition, each of the Parties acknowledges that it did
not execute this Amendment under duress and was represented by competent counsel
in connection with this Amendment.
11. Governing Law. This Amendment, and all of the documents and
instruments executed and delivered in connection with this Amendment, shall be
governed by and construed under the internal laws of the State of Ohio (without
regard to conflicts of law rules), except to the extent that a Party may have
greater rights or remedies under federal law, in which case the choice of Ohio
law shall not deprive the Party of its rights and remedies as may be available
under federal law.
12. Authority to Execute Amendment. Each person or entity
executing this Amendment represents that he/she/it is authorized to execute this
Amendment. Each person executing this Amendment on behalf of an entity
represents that he or she is authorized to execute this Amendment on behalf of
such entity.
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IN WITNESS WHEREOF, the Parties or their duly authorized
representatives have executed this Amendment, consisting of 5 pages (including
signature pages).
Advanced Lighting Technologies, Inc. /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
By: /s/ Xxxxx Xxxxxxx
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Its: Executive Vice President and Treasurer
Saratoga Lighting Holdings, LLC
By: Saratoga Management Company, LLC
as Managing Member
/s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: Executive Committee Member
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