Exhibit 10.4
FOURTH AMENDMENT TO AMENDED AND RESTATED
FORBEARANCE AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED FORBEARANCE AGREEMENT
(this "Amendment") is made and entered into as of this 30th 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
(the "First Amendment"), the Second Amendment to Forbearance Agreement among
Borrowers, Agent and Lenders dated January 15, 2003 (the "Second Amendment"),
and the Third Amendment to Forbearance Agreement among Borrowers, Agent and
Lenders dated January 23, 2003 (the "Third Amendment") (the First Amendment,
Second Amendment, and Third Amendment together with the Forbearance Agreement,
the "Amended Forbearance Agreement").
B. The Amended Forbearance Agreement provided for a Forbearance Period
expiring January 30, 2003, provided that the conditions to forbearance set forth
in Section 2 thereof were satisfied.
C. 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. FORBEARANCE PERIOD. Section 1(a) of the Amended Forbearance
Agreement is hereby amended to delete the date "January 30, 2003" and insert in
lieu thereof "February 3, 2003."
2. NO COURSE OF DEALING; NO COMMITMENT TO FURTHER FORBEAR.
(a) Except as provided in this Amendment, Agent and Lenders
expressly reserve all rights and remedies they may have against
Borrowers, and any and all additional borrowers, guarantors, debtors
and/or obligors for the Loans. Borrowers specifically acknowledge and
agree that neither Agent nor any Lender has made any promise,
commitment or representation whatsoever, nor has Agent or any Lender
any obligation to Borrowers to modify the terms of the Amended
Forbearance Agreement, Credit Agreement, any Security Document or other
Relating Writing or the Loans, offer any discounted payoff of the
Loans, refinance the Loans, grant any forbearance (other than as
provided in the Amended Forbearance Agreement), extend the payment
terms of the Loans or extend any other financial accommodation to
Borrowers.
(b) Without limiting any provision of Section 2(a) above or
otherwise in this Agreement, and notwithstanding Agent and Lenders
deeming an Engagement Letter acceptable to them, nothing contained in
this Agreement or otherwise requires Agent or Lenders: to further
extend the Forbearance Period; enter into a new forbearance agreement;
if a new forbearance agreement were to be entered into, to agree to
include certain terms in such a forbearance agreement; to continue to
make available to Borrowers Revolving Loans under the Credit Agreement
beyond the Forbearance Period; or to forbear from exercising rights as
to the Collateral beyond the Forbearance Period.
3. INTEGRATION. Except as set forth in Section 1 hereof, the Amended
Forbearance Agreement remains in full force and effect and is integrated in its
entirety into this Amendment. References in the Amended Forbearance Agreement to
"this Agreement" are hereby deemed to include this Amendment.
4. 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.
5. 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,
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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 Amended
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.
6. 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.
7. GOVERNING LAW. This Amendment is governed by the laws of the State
of Ohio.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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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
X.X. Xxx 000 XXXXXXX, XXXXX XXXXXXX 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: /s/ Xxxxxxx X. Xxxx, Xx.
-----------------------------
Title: Vice President
--------------------------
Address: Sovereign Bank SOVEREIGN BANK
Xxxxxx 0 & 000-Xxxxxx Xxx
Xxxxxxxxx, XX 00000
Mailcode 20-536-ARO
Attention: Xxxxxxx Geld By: /s/ Xxxxxxx X. Geld
-----------------------------
Title: Vice President
--------------------------
Address: National City Commercial NATIONAL CITY COMMERCIAL
Finance, Inc. FINANCE, INC.
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Title: Vice President
--------------------------
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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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