ROYAL BANK
OF CANADA
U.S.A. Headquarters
0 Xxxxxxx Xxxxx
Xxx Xxxx, X.X. 00000-0000
Tel.: (000) 000-0000
as of December 22, 1999
Genlyte Xxxxxx Group Nova Scotia ULC
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
X.X. Xxx 00000
Xxxxxxxxxx, XX 40232
Attention: Xx. Xxxxx Xxxxx
Ladies and Gentlemen:
Royal Bank of Canada (the "BANK") is pleased to offer to Genlyte Xxxxxx
Group Nova Scotia ULC (the "BORROWER") on the terms and conditions set forth
herein an Advance (as defined below) in Canadian or U.S. Dollars (as the
Borrower shall request) in a principal amount not to exceed C$10,000,000 or the
Equivalent Amount (as defined below) in U.S. Dollars. Defined terms not
otherwise defined in this letter agreement (the "AGREEMENT") shall have the
meanings provided in Annex A attached hereto and made a part hereof.
1. THE ADVANCE
(a) Upon satisfaction of the conditions below, Borrower may, upon
notice as set forth below, request, on or after December 22, 1999, a single
advance hereunder in such currency as Borrower shall request (which may be
either Canadian Dollars or U.S. Dollars) for an amount not to exceed
C$10,000,000 or the Equivalent Amount in U.S. Dollars (the "ADVANCE"). As
between Canadian and U.S. Dollars, the currency in which the Advance is funded
is the "CURRENCY" and the currency in which the Advance is not funded is the
"OTHER CURRENCY." There shall be no conversion of the Advance from the Currency
to the Other Currency during the term of this Agreement.
(b) The interest rate basis for the Advance may be converted or
continued from time to time based on Libor or the Prime Rate applicable to the
Currency. At such time as interest is based on the applicable Libor rate, the
Advance shall be referred to as the Libor Advance and, at such time as interest
is based on the applicable Prime Rate, the Advance shall be referred to as the
Prime Rate Advance; PROVIDED, HOWEVER, any such characterization shall always
constitute but one and the same Advance hereunder in the Currency. If Libor is
selected and no Interest Period is specified, Borrower will be deemed to have
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December 22, 1999
requested an Interest Period of one month. If no interest rate basis is
specified, Borrower will be deemed to have requested a Prime Rate Advance. The
principal amount of the Advance at any time that it shall be a Libor Advance
shall be no less than C$500,000 or larger whole multiples of C$100,000 for the
Advance in Canadian Dollars and US$500,000 or larger whole multiples of
US$100,000 for the Advance in U.S. Dollars.
2. PURPOSE
Borrower will use the Advance to repay a portion of one or more loans
made by the Toronto Dominion Bank to Borrower, originally for the purpose of the
acquisition by Borrower of Ledalite Architectural Products Inc.
3. AVAILABILITY
The Advance shall be drawn on a Business Day (as defined below) no
later than December 31, 1999 and shall mature on the date which is 364 days
thereafter (the "MATURITY DATE"), unless otherwise extended at the sole
discretion of Bank, as herein provided.
4. NOTICE OF BORROWING OR CONVERSION
Notice of the date on which the Advance shall be made, the Currency
requested, the amount to be borrowed, the interest rate basis and, for Libor
Advance, the Interest Period, shall be given by Borrower to Bank in accordance
with the applicable provisions of Schedule A attached hereto and made a part
hereof. Conversions to a different interest rate basis may be made upon notice
as provided in such Schedule; PROVIDED, HOWEVER, in no case shall any Interest
Period extend beyond the Maturity Date.
5. REPAYMENT
The Advance shall be payable in full, together with all accrued
interest thereon not previously paid and any other fees or expenses due
hereunder on the Maturity Date. All amounts payable and due from the Borrower
pursuant to this Agreement shall be paid in immediately available funds in the
Currency. If a day on which an amount is due is not a Business Day, such amount
shall be deemed for all purposes of this Agreement to be due on next following
Business Day unless such next following Business Day is in the next calendar
month in which event such amount shall be due on the Business Day next
preceding, and all interest and other fees shall continue to accrue until
payment. Interest and fees payable under this Agreement are payable both before
and after any or all of default, demand and judgment.
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December 22, 1999
6. INTEREST RATES AND FEES
(a) The following rates of interest and fees shall apply:
(1) For the Advance in Canadian Dollars:
Prime Advance - RBP
Libor Advance - Canadian Libor + 0.50% per annum
(2) For the Advance in U.S. Dollars:
Prime Advance - RBUSBR
Libor Advance - U.S. Libor + 0.50% per annum
(b) Upon Borrower's acceptance of this Agreement, Borrower shall
pay Bank an arrangement fee of Cdn$25,000.
(c) If Borrower shall request an extension of the Advance in
accordance with Section 13 hereof and if Bank, in its sole
discretion, shall agree to such an extension, then, on and at
the effective date of such extension, Borrower shall pay to
Bank an extension fee of Cdn$10,000.
7. INTEREST PAYMENT AND CALCULATION
(a) PRIME ADVANCE
Interest on the Prime Advance will accrue daily on the basis of a year
of 365 days and will be calculated, payable and compounded monthly on such day
of the month as the Bank shall specify. Any change in RBP or RBUSBR shall be
effective as of the opening of business on the day such change takes place.
(b) LIBOR ADVANCE
For the Libor Advance, interest or fees, as applicable, will be
calculated and payable in the manner set forth in Schedule A attached hereto and
made a part hereof.
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Xxxxxxxx 00, 0000
(x) XXXXXXXX XXX (XXXXXX)
The annual rates of interest or fees to which the rates calculated in
accordance with this Agreement are equivalent are the rates so calculated
multiplied by the actual number of days in the calendar year in which such
calculation is made and divided by 365 or, in the case of the Libor Advance,
360. In no event will interest exceed the rate permitted by law. Interest will
be calculated on the basis of a 365-day year and actual days elapsed, and
payable quarterly in arrears on the last Business Day of each March, June,
September and December following the Advance, and on the Maturity Date. The
annual rates of interest to which the rates calculated in accordance with this
Agreement are equivalent, are the rates so calculated multiplied by the actual
number of days in the calendar year in which such calculation is made and
divided by 365. The Borrower shall not be obligated to pay any interest under or
in connection with this letter agreement to the extent such interest exceeds the
effective annual rate of interest on the credit advanced hereunder that would be
lawfully permitted under the CRIMINAL CODE. For purposes of this section,
"interest" and "credit advanced" have the meanings ascribed to such terms in the
CRIMINAL CODE (Canada) and the "effective annual rate of interest" shall be
calculated in accordance with generally accepted actuarial practices and
principles.
8. PREPAYMENT
The Advance may be prepaid in whole or in part upon five days' prior
written notice to Bank; PROVIDED, HOWEVER, that the Libor Advance may be prepaid
only on an Interest Payment Date and the Borrower shall compensate Bank for all
losses, expenses and liabilities which Bank may sustain as the result of any
prepayment. Each prepayment shall be accompanied by payment of interest accrued
on the amount prepaid to the date of prepayment and shall be made in immediately
available funds in the Currency. Any portion of the Advance prepaid may not be
reborrowed within the term hereof, including for this purpose, any extension in
accordance with the terms hereof, unless the Bank shall otherwise agree in
writing.
9. EVIDENCE OF INDEBTEDNESS
(a) The Bank shall maintain on its records, accounts evidencing the
Borrower's liability to the Bank in respect of principal of and interest on the
Advance and all other amounts payable under this letter agreement. The Bank's
accounts shall constitute, in the absence of manifest error, PRIMA FACIE
evidence of the indebtedness of the Borrower to the Bank pursuant to this
Agreement.
(b) If the Advance is made in U.S. Dollars, it shall be evidenced by a
promissory note of the Borrower in form and substance satisfactory to the Bank,
in its sole discretion (the "Note").
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December 22, 1999
10. INDEMNIFICATION AND INCREASED COSTS
(a) If any payment of the Libor Advance occurs on a date that is not
the last day of the applicable Interest Period, whether because of acceleration,
mandatory prepayment or otherwise, or the Libor Advance is not made or converted
or continued on the date specified by the Borrower for any reason other than
default by the Bank, the Borrower will indemnify the Bank for any loss or cost
incurred by it resulting therefrom, including (but not limited to) any loss or
cost in liquidating or employing deposits acquired to fund or maintain such
Libor Advance. The Bank's written statement as to the amount of any such loss
(such statement to set forth in reasonable detail the manner in which such
amount was calculated) will be conclusive, absent manifest error.
(b) If the Bank's cost of making or maintaining the Advance is
increased, any amount received or receivable by the Bank hereunder is reduced or
the rate of return on the Bank's capital in respect of the Advance is reduced by
an amount deemed by the Bank to be material, by reason of any tax not in effect
on the date hereof (other than any increase in the rate of tax on the net
income, gains or profits of the Bank), any reserve or capital adequacy
requirement, liquidity ratio, special deposit requirement or otherwise, then the
Borrower shall either (i) promptly pay the Bank, on demand, any additional
amounts necessary to compensate the Bank for such additional cost or reduced
amount received or receivable or reduction in rate of return with respect to the
Advance or (ii) promptly prepay the outstanding amount of the Advance as
provided in this Agreement, together with such additional amounts for the period
up to such prepayment. The Bank's written statement as to the amount of any such
cost, loss or requirement (such statement to set forth in reasonable detail the
manner in which such amount was calculated) will be conclusive, absent manifest
error.
(c) If the Bank determines that the making or maintenance of the Libor
Advance would violate any applicable law, rule, regulation or directive, whether
or not having the force of law, or if the Bank determines that funds of a type
and maturity appropriate to match fund a requested conversion to or continuation
of the Libor Advance are not available, then the availability of the Libor
Advance shall be suspended and the Advance shall be converted to or continued as
the Prime Advance at the end of the then current Interest Period therefor or at
such earlier time as may be required by applicable law, rule, regulation or
directive. The Bank's written statement as to the such circumstances or
requirements (such statement to set forth in reasonable detail the manner in
which such amount was calculated) will be conclusive, absent manifest error.
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December 22, 1999
11. TAXES
Payments of all amounts to the Bank hereunder shall be made free and
clear of, and without deduction for, any present or future taxes, levies,
imposts, duties or withholding charges imposed by any governmental authority in
any jurisdiction or political subdivision or taxing authority therein( any such
taxes, levies, imposts, duties, withholding charges, collectively, "TAXES"). If
any such Taxes, withholdings or deductions are required by Applicable Law to be
made and are made, the Borrower shall, as a separate and independent obligation,
pay to the Bank all such additional amounts as shall fully indemnify the Bank
from, and hold the Bank harmless against, any such Taxes, withholding or
deduction.
12. LETTER OF CREDIT AND GUARANTY
(a) Borrower shall provide an Irrevocable Standby Letter of Credit in
favor of Bank as the beneficiary thereof for a face amount (the "LETTER OF
CREDIT AMOUNT") at least equal to the Advance, issued by a recognized financial
institution satisfactory to the Bank in its sole discretion, having a term of at
least 364-days from the date of the Advance with such provisions for renewal, if
any, as Bank may agree to (the "LETTER OF CREDIT").
(b) The Letter of Credit may be issued in the Currency or the Other
Currency.
(c) The Letter of Credit shall be in substantially a form submitted to
the Bank for approval and approved by the Bank, in its sole discretion ,
executed and delivered by the issuing bank on or prior to the date of the
Advance and shall be attached hereto and made a part hereof.
(d) If the Letter of Credit is issued in the Other Currency, to the
extent, if any that at any time the Letter of Credit Amount is less than the
Equivalent Amount of the Advance due to fluctuations in the exchange rate by
which such equivalence is determined (a "DEFICIENCY"), upon demand by Bank:
(1) Borrower shall immediately prepay the Advance in the amount of
such Deficiency;
(2) deposit with the Bank and grant to the Bank a security
interest in cash collateral in the Currency in the amount of the
Deficiency; or
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December 22, 1999
(3) cause the Letter of Credit immediately to be increased in an
amount at least equal to the Deficiency plus any such additional
amount which Bank shall reasonably request to cover reasonably
foreseeable adverse fluctuations in the exchange rate at the time
of such increase and to avoid the need for subsequent repeated
increases. (The Letter of Credit so increased shall be the Letter
of Credit hereunder as and from the date of such increase and any
subsequent Deficiency in respect of such Letter of Credit shall,
accordingly, be subject to this Section 12.)
(e) Further to protect Bank against any such adverse currency
fluctuation, Borrower shall cause Genlyte Xxxxxx Group LLC (the "GUARANTOR") to
deliver to Bank, and it shall be a condition to the effectiveness hereof that
the Guarantor shall so deliver, concurrent with the execution and delivery
hereof by Borrower, a written guaranty (the "GUARANTY") in form and substance
satisfactory to Bank which guarantees payment of the Deficiency to the Bank by
the Guarantor on the date of any drawing under the Letter of Credit,
notwithstanding whether Bank shall have made any demand upon Borrower pursuant
to paragraph (d) preceding.
13. EXTENSION
(a) Upon written notice from Borrower to Bank, received no earlier than
60 days and no later than 30 days prior to the Maturity Date, Borrower may
request an extension of the Advance (in the Currency only) for another period of
364-days and, PROVIDED no Event of Default or default which, with notice or the
lapse of time would become an Event of Default, shall then have occurred and be
continuing, if the Bank in its sole discretion agrees to such an extension, the
extended Maturity Date shall be the date which is 364 days from the Maturity
Date in effect prior to such extension, subject to the payment of such
administrative fees and expenses as Bank may require. For the avoidance of all
doubt, it is hereby confirmed, acknowledged and agreed by Borrower that the Bank
shall have entire and sole discretion at the time of any extension request as
provided herein to agree or not to agree to such extension and upon such
additional or different terms and conditions as Bank may deem appropriate at
such time and under such circumstances, notwithstanding anything to the contrary
herein or otherwise.
(b) Any extended Maturity Date may be extended for a further period of
364 days upon the Borrower's request, subject to the conditions set forth in
paragraph (a) preceding, if the Bank, in its sole discretion, shall agree;
PROVIDED, HOWEVER, that no such extended Maturity Date shall be later than 6
days prior to the anniversary of the initial Maturity Date in the year 2004.
(c) Not in derogation but in furtherance of the Bank's sole discretion
to agree to any such extension, no such extension shall be made unless there
shall be a Letter of Credit in an amount and for a term at least coextensive
with such extension.
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Xxxxxxxx 00, 0000
(x) At the initial Maturity Date provided herein and on every Maturity
Date as extended hereunder, the entire Advance shall be due and payable in full
together with accrued interest, fees and any other expenses hereunder unless
extended; PROVIDED, if the Bank shall agree to any such extension, there shall
be a mandatory prepayment on the Maturity Date prior to extension, in the amount
which is the lesser of the amount set forth below for such Maturity Date and the
entire amount then outstanding and due, as a condition to any such extension:
Maturity Date 2000: C$ 500,000
Maturity Date 2001: C$1,000,000
Maturity Date 2002: C$1,500,000
Maturity Date 2003: C$2,000,000
Maturity Date 2004: C$5,000,000
14. CONDITIONS PRECEDENT
The Bank's obligation to fund the Advance is subject at the time of
such funding to the following conditions:
(a) The Bank shall have received:
(1) This Agreement and, if the Advance is requested to be made
in U.S. Dollars, the Note, each duly executed and delivered by
Borrower, and the Letter of Credit in form and substance satisfactory
to the Bank, duly executed by an authorized officer of the issuer
thereof;
(2) The Guaranty, duly executed and delivered by the
Guarantor;
(3) Certified copies of Board resolutions authorizing the
Borrower's borrowing hereunder and the execution, delivery and
performance of this Agreement and the Note, if any, and certified
copies of Board resolutions of the Guarantor authorizing the
Guarantor's Guaranty as provided herein and therein;
(4) Incumbency certificates showing the names, titles and
signatures of the Borrower's officers authorized to execute and deliver
this Agreement and the Note, if any, and otherwise to act with respect
to this Agreement and the Note, if any, and incumbency certificates
showing the names, titles and signatures of Guarantor's officers
authorized to execute and deliver the Guaranty;
(5) An opinion of counsel to the Borrower, in form and
substance satisfactory to the Bank;
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December 22, 1999
(6) A copy of the Genlyte Group Incorporated financial
statements for the latest fiscal quarter and related Genlyte Xxxxxx
Group LLC attachments, accompanied by a compliance certificate from the
Chief Financial Officer of Genlyte Xxxxxx Group LLC confirming that all
terms and conditions are in compliance with the Credit Agreement dated
August 30, 1998 by and among Genlyte Xxxxxx Group LLC and the Banks
named therein and Bank of America National Trust and Savings
Association, as Agent and Issuing Bank (as amended, modified or
supplemented);
(7) A copy of the latest Forms 10-Q and 10-K for The Genlyte
Group Incorporated and Xxxxxx Industries Inc., respectively;
(8) Such other documents, instruments, opinions or assurances
as the Bank may require; and
(9) Payment of the administrative fee provided herein and all
legal expenses incurred by the Bank in connection with this Agreement,
the Note, if any, the Letter of Credit, the Guaranty or any related
matters contemplated hereby.
(b) At the time the Borrower requests the Advance, upon acceptance of
the proceeds and after giving effect thereto, there shall exist no Event of
Default (as specified below) and no condition or event that, with or without the
giving of notice or lapse of time or both, would become an Event of Default, and
all representations and warranties made herein shall be true and correct with
the same effect as though made on and as of such date.
15. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank as of the date hereof,
the date on which the Advance is made, any date on which an extension is
requested hereunder and any date on which such extension is made, that:
(a) Borrower is a corporation, duly incorporated and organized, validly
existing and in good standing under the laws of Nova Scotia, has adequate
corporate power and authority to carry on its business, own property, borrow
monies and enter into agreements therefor, executed and deliver this Agreement
and any other document or instrument required hereunder or contemplated hereby,
observe and perform the terms and conditions of this Agreement and that it is
duly registered or qualified to carry on business in all jurisdictions where the
nature of its properties, assets or business makes such registration or
qualification necessary or desirable.
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December 22, 1999
(b) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary actions, this Agreement has been duly executed
by Borrower and such execution, delivery and performance do not and will not (i)
violate any law, regulation or rule by which it is bound, (ii) violate any
provision of its charter documents, by-laws or any shareholders' agreement to
which it is subject, (iii) contravene or result in a breach of, or a default
under, any agreement or instrument to which it is a party or by which it or any
of its properties or assets may be bound or affected or (iv) result in the
creation of any encumbrance on any of its properties or assets.
(c) Subject to applicable bankruptcy, insolvency, moratorium,
reorganization and other similar laws affecting creditors' rights generally, and
to the equitable and statutory powers of courts to stay proceedings before them
and to stay the execution of judgments, this Agreement constitutes a legal,
valid and binding obligation of the Borrower, enforceable in accordance with its
terms.
(d) The most recent audited, consolidated financial statements of
Borrower and Genlyte Xxxxxx Group LLC delivered to the Bank fairly present in
conformity with GAAP the consolidated financial position of the Borrower and
Genlyte Xxxxxx Group LLC as of the date thereof and the consolidated results of
operations and cash flows for the fiscal year covered thereby, and since the
date of such financial statements there has occurred no material adverse change
in the business or financial condition of the Borrower or Genlyte Xxxxxx Group
LLC.
(e) Borrower is in compliance in every material respect with all
Applicable Laws, including, without limitation, all Environmental Laws and there
are no actions, suits or proceedings, initiated or threatened, against the
Borrower and its subsidiaries, before any court or administrative agency or
otherwise which would result in any material adverse effect on the property,
assets, financial condition and business or operations of the Borrower.
(f) No event has occurred which constitutes, or which with giving of
notice, lapse of time or other condition would constitute, a default having a
material adverse effect on the financial condition of the Borrower under or in
respect of any agreement, undertaking or instrument to which the Borrower is a
party or to which the Borrower or any of its properties or assets may be
subject.
(g) All material authorizations, approvals, consents, licenses,
exemptions, filings, registrations, notarizations and other requirements of
governmental, judicial and public bodies and authorities required to carry on
Borrower's business have been obtained or effected and will, as such
requirements arise in the future, be obtained and effected and are or will be,
respectively, in full force and effect.
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December 22, 1999
(h) All payments required to be made by Borrower to any taxing or
regulating governmental authority in respect of taxes, fees, licenses or other
payments have been paid and there are no outstanding arrears. Without limiting
the foregoing, all employee deductions (including income taxes, unemployment
insurance and Canada Pension Plan), sales taxes (provincial, state or federal),
corporate income taxes in any jurisdiction, payroll taxes and worker's
compensation are fully and currently paid.
(i) All remittances required to be made by the Borrower to any federal,
provincial or state and municipal governments have been made, are currently up
to date and there are no outstanding arrears. Without limiting the foregoing,
all employee deductions (including income taxes, unemployment, insurance and
Canada Pension Plan, sales taxes (provincial, state or federal), corporate
income taxes, payroll taxes and worker's compensation amounts due are currently
paid and up to date.
(j) The Borrower and Genlyte Xxxxxx Group LLC have used and shall
continue to use commercially reasonable practices and judgment to ensure that
the Borrower's products, business systems and revenue generating systems (the
"SYSTEMS") are "Year 2000 Compliant" as defined below. Upon request by Bank,
Borrower shall provide documentation relating to or evidencing such Year 2000
Compliance. The Borrower and Genlyte Xxxxxx Group LLC have each taken, and will
continue to take as necessary, reasonable steps to ensure to the satisfaction of
each that third party suppliers, subcontractors, or Agents of either of them are
Year 2000 Compliant. "YEAR 2000 COMPLIANT" or "YEAR 2000 COMPLIANCE" means the
Systems will process, calculate, accept, maintain, store and produce date and
time data and data dependent thereon accurately and without delay, interruption
or error at all times from, the date of this Agreement forward for so long as
this Agreement shall be in effect, including without limitation, for dates
before, on and after January 1, 2000, including leap year calculations, and will
function accurately and with out interruption at all times before, on and after
January 1, 2000 (including through February 29, 2000) without any adverse change
in operations associated with the advent of the year 2000.
16. COVENANTS
The Borrower agrees that, until all obligations to the Bank hereunder
are paid in full, the Borrower will:
(a) Pay when due all amounts owing under this Agreement.
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December 22, 1999
(b) Furnish to the Bank not later than 120 days after the close of each
of its fiscal years, and within 60 days of the close of each fiscal quarter,
copies of annual audited and quarterly audited, consolidated financial
statements for such period and related Genlyte Xxxxxx Group LLC attachments,
prepared in accordance with generally accepted accounting principles, reported
on by the Borrower's independent certified public accountants, together with a
compliance certificate from the Chief Financial Officer confirming that all
terms and conditions are in compliance with this Agreement and that no even has
occurred that is, or with the passing of time may become, an Event of Default
hereunder or a default under any other agreement.
(c) Provide the Bank with any information and financial data as it may
reasonably request from time to time.
(d) Promptly give notice to the Borrower of the existence of any
condition or the occurrence of any event or act that, with or without the giving
of notice or lapse of time, or both, would constitute an Event of Default.
(e) In the event, after the date hereof, Borrower grants any security
interest, or otherwise pledges, assigns or transfers property or rights in any
of its assets as security to, or agrees to covenants or pricing more favorable
than provided herein with, any other lender or secured creditor, grant, pledge,
assign or transfer an interest in such property or rights or in property and
rights equivalent in value at such time to such property and rights (up to the
U.S. Dollar Equivalent Amount of the obligations of Borrower hereunder), or
otherwise amend this Agreement to provide for covenants or pricing, in any case
ranking at least equal and PARI PASSU to such interests in favor of such other
lenders or secured creditors.
17. EVENTS OF DEFAULT
If any of the following events occurs:
(a) any principal (including any prepayment) of the Advance, any
interest on the Advance, or any other amount due hereunder is not paid when due
and such failure continues for three Business Days;
(b) the Borrower defaults in the due performance or observance of any
other term, covenant or agreement to be performed or observed by it contained
herein and such default, if capable of cure, is not cured within 30 Business
Days after the Borrower's receipt of notice thereof;
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December 22, 1999
(c) any representation made herein or in any document or financial or
other statement delivered in connection herewith proves to have been incorrect
or misleading in any material respect as of the date at which it was made or
deemed to be made and such representation shall be material at the time it shall
have been determined to have been false or incorrect; or
(d) any default or similar event occurs or condition exists that would
permit and in fact causes the Bank to declare immediately due and payable, or
the Borrower or the Guarantor fails to pay at its stated maturity, any amount
owed to the Bank by the Borrower or the Guarantor under any other loan or credit
agreement;
(e) the Letter of Credit is terminated or the rating of the issuer
thereof changes unfavorably, in the Bank's opinion, or the Guaranty ceases to be
in full force and effect, enforceable in accordance with its terms against the
Guarantor;
(f) Borrower (i) has an order for relief entered with respect to it
under Canadian or United States bankruptcy laws or any other law, domestic or
foreign, relating to bankruptcy, insolvency or reorganization or relief of
debtors as now or hereafter in effect, (ii) makes an assignment for the benefit
of creditors, (iii) applies for, seeks, consents to, or acquiesces in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar
official for it or any material part of its property, (iv) institutes any
proceeding seeking an order for relief under Canadian or United States
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, disestablishment,
liquidation, reorganization, arrangement, adjustment or composition of it or its
debts or suspension of its general operations under any law, domestic or
foreign, relating to bankruptcy, insolvency or reorganization or relief of
debtors or fails to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) takes any company
action to authorize or effect any of the foregoing actions set forth in this
paragraph (e); (vi) fails to contest in good faith any appointment or proceeding
described in the following paragraph (f); or (vii) does not pay, or admits in
writing its inability to pay, its debts generally as they become due;
(g) without application, approval or consent of the Borrower, a
receiver, trustee, examiner, liquidator or similar official is appointed for the
Borrower or any material part of its property, or a proceeding described in the
preceding paragraph (f) is be instituted against the Borrower and such
appointment continues undischarged or such proceeding continues without being
dismissed or is unstayed for a period of 60 consecutive days; or
(h) any court, government or governmental agency condemns, seizes or
otherwise appropriates, or takes custody or control of, all or any substantial
portion of the property of the Borrower;
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December 22, 1999
then, at any time during the existence of such event, the Bank may, by notice to
the Borrower or, in the case of events under paragraphs (f), (g) or (h),
automatically without notice, terminate the Agreement and the obligations of the
Bank hereunder and/or declare the Advance and all other amounts owing under this
Agreement to be immediately due and payable without presentment, demand,
protest, or other notice of any kind, all of which are hereby expressly waived.
18. NOTICES
Except as otherwise specified herein, all notices, requests, demands or
other communications to or upon the respective parties hereto shall be in
writing and shall be deemed to have been duly given or made five Business Days
after being mailed (by registered or certified mail, return receipt requested)
or when delivered by hand or overnight courier or by telefax, such telefax to be
telephonically confirmed by the sender, to the party to which such notice,
request, demand or other communication is required or permitted to be given or
made under this letter agreement, addressed to such party at its address or
telefax number set forth on Annex B attached hereto and made a part hereof or at
such other address or telefax number as such party may hereafter specify by a
notice to the other party.
19. NO WAIVER; NO ORAL MODIFICATIONS
(a) No failure or delay on the part of Bank in exercising any right
hereunder or under the Guaranty, and no course of dealing between the Borrower
and the Bank, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder or under the Guaranty preclude any other or
further exercise thereof or the exercise of any other right hereunder or
thereunder. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies that the Bank would otherwise have.
(b) This Agreement may not be amended, supplemented, waived or
otherwise modified orally.
20. BINDING EFFECT
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; PROVIDED,
HOWEVER, that the Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of the Bank.
Genlyte Xxxxxx Group Nova Scotia ULC Page 15
December 22, 1999
(b) Bank may sell, assign, transfer, negotiate or otherwise dispose of
its rights hereunder (a) with the prior written consent of the Borrower, which
consent shall not be unreasonably withheld or delayed, to a Canadian financial
institution, or (b) without any such consent, to a Canadian affiliate of the
Bank; PROVIDED, the consent of the Borrower under clause (i) shall not be
required if an Event of Default shall have occurred and be continuing.
21. EXPENSES
The Borrower shall pay on demand all out-of-pocket expenses (including
fees and disbursements of counsel) reasonably incurred by Bank in connection
with the preparation of this Agreement, the Letter of Credit, the Guaranty, any
promissory note made hereunder or any other document, instrument or action
arising hereunder or contemplated hereby, and the preservation and enforcement
of Bank's rights hereunder.
22. CURRENCY
The Currency in which the Advance is funded, whether Cdn. Dollars or
U.S. Dollars is of the essence. The obligations of Borrower hereunder shall,
notwithstanding any payment in any currency other than the Currency (whether
pursuant to judgment or award or otherwise), be discharged only to the extent of
the amount of the Currency that the Bank may, in accordance with normal banking
procedures, purchase and receive with the sum paid in such different currency,
including without limitation, the Other Currency (including any premium and
costs of exchange) on the Business Day immediately following the day on which
the Bank receives such payment in such different currency. If the conversion
rate actually applied differs from the rate of exchange prevailing on such
Business Day and, as a result, the amount of the Currency so purchased falls
short of the amount originally due in the Currency, the Borrower agrees to pay
such additional amount in the Currency as may be necessary to indemnify the Bank
against such shortfall (and if the amount of the Currency so purchased exceeds
the amount originally due, the excess shall be refunded to the Borrower). Any
obligation not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided in this Section, shall
continue in full force and effect. No such obligation shall be affected by any
judgment being obtained for any amount due under or in respect of this Agreement
or by any time or indulgence granted to the Borrower from time to time.
23. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the law of the State of New York.
Genlyte Xxxxxx Group Nova Scotia ULC Page 16
December 22, 1999
24. SUBMISSION TO JURISDICTION.
FOR PURPOSES OF ANY SUIT, ACTION OR PROCEEDING INVOLVING THIS
AGREEMENT, ANY NOTE OR ANY OTHER DOCUMENT OR INSTRUMENT CONTEMPLATED HEREBY OR
REQUIRED HEREUNDER OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT OF SUCH SUIT,
ACTION OR PROCEEDING, THE BORROWER EXPRESSLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY STATE OR U.S. FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK AND AGREES THAT ANY ORDER, PROCESS OR OTHER
PAPER MAY BE SERVED UPON THE BORROWER WITHIN OR WITHOUT SUCH COURT'S
JURISDICTION BY MAILING A COPY TO THE BORROWER AT THE BORROWER'S ADDRESS FOR
NOTICES PROVIDED IN THIS AGREEMENT, PROVIDED THAT A REASONABLE TIME FOR
APPEARANCE IS ALLOWED. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OF PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
BROUGHT IN ANY SUCH COURT AND FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING CONTAINED IN THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT SHALL AFFECT THE BANK'S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST THE
BORROWER OR THE BORROWER'S PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.
25. WAIVER OF JURY TRIAL.
THE BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED WITH
ANY CREDIT DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER AND AGREE THAT
ANY SUCH PROCEEDING SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Genlyte Xxxxxx Group Nova Scotia ULC Page 17
December 22, 1999
26. SEVERABILITY
If any provision of this Agreement is or becomes prohibited or
unenforceable in any jurisdiction, such prohibition or unenforceability shall
not invalidate or render unenforceable the provision concerned in any other
jurisdiction nor invalidate, affect or impair any of the remaining provisions
hereof.
27. WHOLE AGREEMENT
This Agreement and any agreements delivered pursuant to or referred to
in this Agreement constitute the whole and entire agreement between the parties
in respect hereof.
If you agree to all of the terms and conditions set forth herein,
please accept and agree by signing in the place provided below and return one
original to the attention of the undersigned. This offer is open for acceptance
until the conclusion of two weeks from the date hereof and if not accepted by
the execution and delivery hereof by such date, shall expire as of close of
business on such date.
Yours truly,
ROYAL BANK OF CANADA
By
Name: X.X. Xxxxxx
Title: Senior Manager
Accepted and agreed, this 22nd day of December , 1999:
---- -----------
GENLYTE XXXXXX GROUP
NOVA SCOTIA ULC
By X.X. XXXXX
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By X.X. XXXXX
---------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
Annex A
DEFINITIONS
"APPLICABLE LAW" means, in respect of any Person, property, transaction or
event, all present or future applicable laws, statutes, regulations, treaties,
judgments and decrees and (whether or not having the force of law) all
applicable official directives, rules, guidelines, orders, by-laws, approvals,
permits, consents and policies of any governmental or regulatory body, stock
exchange or securities commission having jurisdiction.
"BUSINESS DAY" means a day, excluding Saturday, Sunday and any other day which
shall be in The City of New York or in The City of Toronto a legal holiday or a
day on which banking institutions are closed and means, with respect to the
Libor Advance, a Business Day which is also a day on which dealings in the
applicable currency, U.S. or Canadian, as the case may be by and between leading
banks in the London interbank market may be conducted.
"CANADIAN DOLLARS" and the symbols "CDN$" and "$" each means lawful money of
Canada.
"CANADIAN LIBOR" means, with respect to each Libor Interest Period applicable to
the Advance in Canadian Dollars, the annual rate of interest (rounded upwards,
if necessary, to the nearest whole multiple of one sixteenth of one percent
(1/16th%)), at which the Bank, in accordance with its normal practice, would be
prepared to offer to leading banks in the London interbank market (or such other
interbank market as Bank shall deem appropriate under the circumstances) for
delivery on the first day of such Libor Interest Period and for a period equal
to such Libor Interest Period, deposits in Canadian Dollars of amounts
comparable to such Libor Advance to be outstanding during such Libor Interest
Period, at or about 10:00 a.m. (Toronto time) on the Interest Determination
Date.
"CONTAMINANT" includes, without limitation, any pollutant, dangerous substance,
liquid waste, industrial waste, hazardous material, hazardous substance or
contaminant including any of the foregoing as defined in any Environmental Law.
"ENVIRONMENTAL ACTIVITY" means any past, present or future activity, event or
circumstance in respect of a Contaminant, including, without limitation, its
storage, use, holding, collection, purchase, accumulation, assessment,
generation, manufacture, construction, processing, treatment, stabilization,
disposition, handling or transportation, or its Release, escape, leaching,
dispersal or migration into the natural environment, including the movement
through or in the air, soil, surface water or groundwater.
"ENVIRONMENTAL LAW" means any and all applicable international, federal,
provincial, state, municipal or local laws, statutes, regulations, treaties,
orders, judgments, decrees, ordinances and official directives and all
authorizations relating to the environment, occupational health and safety or
any Environmental Activity.
A-2
"EQUIVALENT AMOUNT" means, with respect to any amount of the Currency or the
Other Currency, the amount of, respectively, the Other Currency or the Currency
required to purchase that amount of the first currency through the Bank at the
Bank's noon spot rate in either New York City or Toronto as applicable, in
accordance with normal banking procedures.
"GAAP" means generally accepted accounting principles in effect from time to
time in Canada applied in a consistent manner from period to period.
"INTEREST DETERMINATION DATE" means, with respect to a Libor Advance, the date
which is 2 Business Days prior to the first day of the Libor Interest Period
applicable to such Libor Advance.
"INDEBTEDNESS" means, (a) indebtedness for borrowed money or for the deferred
purchase price of goods or services (including trade obligations), (b)
obligations under leases which are or should be reported, in accordance with
generally accepted accounting principles, as capital leases, (c) obligations
under letters of credit or guarantee, whether issued for the benefit of the
Borrower or another or others, (d) obligations arising pursuant to bankers'
acceptance facilities, and (e) obligations under guarantees, endorsements (other
than for collection or deposit in the ordinary course of business) and other
obligations to purchase, provide funds for payment, provide funds for investment
in or otherwise provide financial assistance to any other party but
"INDEBTEDNESS" does not include deferred taxes.
"LIBOR" means, as applicable, Canadian Libor or U.S. Libor.
"LIBOR INTEREST DATE" means, with respect to the Libor Advance, the last day of
each Libor Interest Period and, if the Borrower selects a Libor Interest Period
longer than 3 months, the Libor Interest Date shall be the date falling every 3
months after the beginning of such Libor Interest Period as well as the last day
of such Libor Interest Period.
"LIBOR INTEREST PERIOD" means, with respect to any Libor Advance, a period of
one, two, three or six months as selected by Borrower, subject to availability,
commencing with the date on which such Libor Advance is made or converted from
the Prime Advance, or the last day of the immediately prior Libor Interest
Period.
"PERSON" means any individual, firm, partnership, company, corporation,
government, governmental body or agency, instrumentality and unincorporated body
of persons or association.
"RELEASE" includes discharge, spray, inject, inoculate, abandon, deposit, spill,
leak, seep, pour, emit, empty, throw, dump, place and exhaust, and when used as
a noun has a similar meaning.
A-3
"RBP" and "ROYAL BANK PRIME" each means, with respect to the Prime Advance in
Canadian Dollars, the annual rate of interest announced by the Bank from time to
time as being a reference rate then in effect for determining interest rates on
Canadian Dollar commercial loans made in Canada.
"RBUSBR" and "ROYAL BANK US BASE RATE" each means, with respect to the Prime
Advance in U.S. Dollars, the annual rate of interest determined by the Bank in
New York City from time to time as its prime rate then in effect for determining
interest rates on US Dollar commercial loans.
"US DOLLARS," "U.S. DOLLARS" and "US$" each means lawful money of the United
States of America in immediately available funds.
"U.S. LIBOR" means, with respect to each Libor Interest Period applicable to the
Advance in U.S. Dollars, the annual rate of interest (rounded upwards, if
necessary, to the nearest whole multiple of one sixteenth of one percent
(1/16th%)), at which the Bank, in accordance with its normal practice, would be
prepared to offer to leading banks in the London interbank market for delivery
on the first day of such Libor Interest Period and for a period equal to such
Libor Interest Period, deposits in US Dollars of amounts comparable to such
Libor Advance to be outstanding during such Libor Interest Period, at or about
10:00 a.m. (New York City time) on the Interest Determination Date.
ANNEX B
ADMINISTRATIVE DETAILS
PAYMENTS TO BANK: For U.S. Dollar payments:
Royal Bank of Canada
Grand Cayman (North America No. 1) Branch
c/o New York Branch
Attention: Loans Administration
The Chase Manhattan Bank, New York
ABA # 000000000
Account of Royal Bank of Canada, New York
Account No.: 000-0-000000 for further credit to account
no. 000-000-0 (loans), Ref: Genlyte Xxxxxx Group
For Canadian Dollar payments: as Bank shall advise Borrower
in writing prior to any such payment.
BORROWER'S ADDRESS
FOR NOTICES: Genlyte Xxxxxx Group Nova Scotia ULC
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
X.X. Xxx 00000
Xxxxxxxxxx, XX 40232
Attention: Xx. Xxxxx Xxxxx
Telephone No.:
Facsimile No.:
BANK'S ADDRESS
FOR NOTICES: Royal Bank of Canada
Grand Cayman (North America No.1) Branch
c/o New York Branch
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to: Royal Bank of Canada
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. X. X. Xxxxxx, Senior Manager
Telefax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Schedule A
NOTICE REQUIREMENTS FOR DRAWDOWN,
CONVERSIONS OR CONTINUATIONS
THE PRIME ADVANCE
Borrower shall request the Prime Advance or conversion to Prime Advance by 10:00
AM (Toronto or New York City time, as applicable to the Currency) on the day of
the Advance, conversion or continuation.
THE LIBOR ADVANCE
Borrower shall request the Libor Advance by 10:00 a.m. (Toronto or New York City
time, as applicable to the Currency) on the Interest Determination Date.
LIBOR ADVANCE CONDITIONS
The Borrower may borrow by way of the Libor Advance subject to the following
further conditions:
(a) The Borrower may select the Libor Interest Period applicable to the Libor
Advance and shall notify the Bank of such Libor Interest Period when giving
notice pursuant to Schedule "A".
(b) The Borrower shall pay interest on the Libor Advance in the Currency on
each Libor Interest Date, calculated in arrears. Such interest will accrue
daily on the basis of the actual number of days elapsed and a year of 360
days.
