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Exhibit 10.2
SEVENTH AMENDMENT AGREEMENT
This Seventh Amendment Agreement is effective as of the 27th day of
March 2001, by and among ADVANCED LIGHTING TECHNOLOGIES, INC., an Ohio
corporation ("U.S. Borrower"), VENTURE LIGHTING POWER SYSTEMS, NORTH AMERICA
INC. (f.k.a. Ballastronix Incorporated), a corporation organized under the laws
of the Province of Nova Scotia, CANADIAN LIGHTING SYSTEMS HOLDING, INCORPORATED,
a corporation organized under the laws of the Province of Nova Scotia
(collectively, "Canadian Borrowers" and, individually, "Canadian Borrower"),
PARRY POWER SYSTEMS LIMITED (Company No. 2833448, f.k.a. Venture Lighting Europe
Ltd.), incorporated under the laws of England, VENTURE LIGHTING EUROPE LTD.
(Company No. 3341889, f.k.a. Parry Power Systems Limited), incorporated under
the laws of England (collectively, "UK Borrowers" and, individually, "UK
Borrower", and together with U.S. Borrower and Canadian Borrowers, collectively,
"Borrowers" and, individually, "Borrower"), the banking institutions listed on
Schedule 1 (as amended herein) to the Credit Agreement, as hereinafter defined
("Banks"), and PNC BANK, NATIONAL ASSOCIATION, as agent for the Banks ("Agent"):
WHEREAS, Borrowers, Agent and the Banks are parties to a certain Credit
Agreement dated as of May 21, 1999, as amended, that provides, among other
things, for loans aggregating Sixty Million Dollars ($60,000,000), all upon
certain terms and conditions stated therein ("Credit Agreement");
WHEREAS, Borrowers, Agent and the Banks desire to amend the Credit
Agreement to modify certain provisions thereof; and
WHEREAS, each term used herein shall be defined in accordance with the
Credit Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other valuable considerations, Borrowers,
Agent and the Banks hereby agree as follows:
1. Subsection (vii) of Section 5.11 of the Credit Agreement is hereby
amended to read in its entirety as follows:
"any advance or loan to an officer or employee of a Borrower
or a Subsidiary made in the ordinary course of such Company's
business, so long as all such advances and loans from all
Companies aggregate not more than the maximum principal sum of
Four Million Dollars ($4,000,000) at any time outstanding
(excluding the loan to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ referred to in (viii)
below);"
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2. Subsection (viii) of Section 5.11 of the Credit Agreement, which was
deleted pursuant to the terms of the Second Amendment Agreement, is hereby added
to read in its entirety as follows:
"the loan from U.S. Borrower to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, outstanding on the Closing
Date in the principal amount of Nine Million Dollars ($9,000,000);"
3. Concurrently with the execution of this Seventh Amendment Agreement,
Borrowers shall:
(a) cause each Guarantor of Payment to consent and agree to
and acknowledge the terms of this Seventh Amendment Agreement;
(b) deliver such other documents as may reasonably be required
by Agent in connection with this Seventh Amendment Agreement;
and
(c) pay to Agent on behalf of the Banks a fee of $100,000,
plus all legal fees and expenses of Agent in connection with
this Seventh Amendment Agreement.
4. Borrowers hereby represent and warrant to Agent and the Banks that
(a) each Borrower has the legal power and authority to execute and deliver this
Seventh Amendment Agreement; (b) the officers executing this Seventh Amendment
Agreement have been duly authorized to execute and deliver the same and bind
such Borrower with respect to the provisions hereof, (c) the execution and
delivery hereof by Borrowers and the performance and observance by Borrowers of
the provisions hereof do not violate or conflict with the organizational
agreements of any Borrower or any law applicable to any Borrower or result in a
breach of any provision of or constitute a default under any other agreement,
instrument or document binding upon or enforceable against any Borrower; (d) no
Unmatured Event of Default or Event of Default exists under the Credit
Agreement, nor will any occur immediately after the execution and delivery of
this Seventh Amendment Agreement or by the performance or observance of any
provision hereof; (e) neither Borrower nor any Guarantor of Payment is aware of
any claim or offset against, or defense or counterclaim to, any of Borrowers' or
any Guarantor of Payment's obligations or liabilities under the Credit Agreement
or any Related Writing; and (f) this Seventh Amendment Agreement constitutes a
valid and binding obligations of each Borrower in every respect, enforceable in
accordance with its terms.
5. Each reference that is made in the Credit Agreement or any other
writing to the Credit Agreement shall hereafter be construed as a reference to
the Credit Agreement as amended hereby. Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby. This Seventh Amendment Agreement is a Related
Writing as defined in the Credit Agreement.
6. Each Borrower and each Guarantor of Payment, by signing below,
hereby waives and releases Agent and each of the Banks and their respective
directors, officers, employees, attorneys,
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affiliates and subsidiaries from any and all claims, offsets, defenses and
counterclaims of which any Borrower and any Guarantor of Payment is aware, such
waiver and release being with full knowledge and understanding of the
circumstances and effect thereof and after having consulted legal counsel with
respect thereto.
7. This Seventh Amendment Agreement may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
8. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio, without regard to principles of conflicts of
laws.
9. JURY TRIAL WAIVER. BORROWERS, AGENT AND EACH OF THE BANKS WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG ANY BORROWER, AGENT AND THE BANKS, OR ANY
THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS WAIVER SHALL NOT
IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY AGENT'S OR ANY BANK'S ABILITY
TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION
CONTAINED IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT BETWEEN
BORROWERS, AGENT AND THE BANKS, OR ANY THEREOF.
ADVANCED LIGHTING TECHNOLOGIES CANADIAN LIGHTING SYSTEMS
HOLDING, INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ R. G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- ----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Title: VP Finance and Administration
Chief Financial Officer --------------------------------
VENTURE LIGHTING POWER SYSTEMS, VENTURE LIGHTING EUROPE
NORTH AMERICA INC. (f.k.a. Ballastronix LTD.
Incorporated)
By: /s/ ▇. ▇▇▇▇▇
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By: /s/ R. G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director
--------------------------------- ----------------------------
Title: VP Finance and Administration
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PARRY POWER SYSTEMS LIMITED FLEET NATIONAL BANK, as a Bank
By: /s/ W. ▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- ------------------------------------
Title: Director Title: Senior Vice President
---------------------------- ---------------------------------
PNC BANK, NATIONAL ASSOCIATION, SOVEREIGN BANK, as a Bank
as Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. Title: Vice President
-------------------------------- ---------------------------------
Title: Vice President
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NATIONAL CITY COMMERCIAL
FINANCE, INC., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Senior Vice President
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GUARANTOR ACKNOWLEDGMENT
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Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing Seventh Amendment Agreement. Each of the undersigned
further agrees that the obligations of each of the undersigned pursuant to the
Guaranty of Payment executed by each of the undersigned shall remain in full
force and effect and be unaffected hereby.
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
of each of the companies listed above
Deposition Sciences, Inc.
▇▇▇▇▇▇ Lighting, Inc.
Ruud Lighting, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
signing for each of the companies listed
above by Power of Attorney
