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Exhibit 10.2
[Sovereign]
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This Assignment and Acceptance Agreement (this "Assignment
Agreement") between PNC BANK, NATIONAL ASSOCIATION (the "Assignor") and
SOVEREIGN BANK ("Assignee") is dated as of November 2, 1999. The parties hereto
agree as follows:
1. PRELIMINARY STATEMENT. Assignor is a party to a Credit
Agreement, dated as of May 21, 1999 (which, as amended and as it may from time
to time be further amended, restated or otherwise modified, is herein called the
"Credit Agreement"), among ADVANCED LIGHTING TECHNOLOGIES, INC., as U.S.
Borrower, certain Subsidiaries as Canadian Borrowers and certain Subsidiaries as
UK Borrowers (collectively, "Borrowers", and, individually, "Borrower"), the
banking institutions named on SCHEDULE 1 thereto (collectively, "Banks" and,
individually, "Bank"), and PNC BANK, NATIONAL ASSOCIATION, as agent for the
Banks ("Agent"). Capitalized terms used herein that are defined in the Credit
Agreement and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. Assignor hereby sells and
assigns to Assignee, and Assignee hereby purchases and assumes from Assignor, an
interest in and to Assignor's rights and obligations under the Credit Agreement,
effective as of the Assignment Effective Date (as hereinafter defined), equal to
the percentage interest specified on ANNEX 1 hereto (hereinafter, "Assignee's
Percentage") of Assignor's right, title and interest in and to (a) the
Commitment of Assignor as set forth on ANNEX 1 hereto (hereinafter, "Assigned
Amount"), (b) any Loan made by Assignor which is outstanding on the Assignment
Effective Date, (c) Assignor's interest in any Letter of Credit, as defined in
the Credit Agreement, which is issued and outstanding on the Assignment
Effective Date, (d) any Note delivered to Assignor pursuant to the Credit
Agreement, and (e) the Credit Agreement and the other Related Writings. After
giving effect to such sale and assignment and on and after the Assignment
Effective Date, Assignee shall be deemed to have a "Commitment Percentage" under
the Credit Agreement equal to the Commitment Percentage set forth in subsection
I.B on ANNEX 1 hereto.
3. ASSIGNMENT EFFECTIVE DATE. The Assignment Effective Date
(the "Assignment Effective Date") shall be November 2, 1999, provided that the
following conditions precedent shall have been satisfied:
(a) receipt by Agent of this Assignment Agreement, including
ANNEX 1 hereto, properly executed by Assignor and Assignee and accepted and
consented to by Agent and, if necessary pursuant to the provisions of Section
10.10(A)(i) of the Credit Agreement, by Borrowers;
(b) receipt by Agent from Assignee of an administrative
questionnaire, or other similar document, which shall include (i) the address
for notices under the Credit Agreement, (ii) the address of its Lending Office,
(iii) wire transfer instructions for delivery of funds by Agent, (iv) and such
other information as Agent shall request; and
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(c) receipt by Agent from Assignor or Assignee of any other
information required pursuant to Section 10.10 of the Credit Agreement or
otherwise necessary to complete the transaction contemplated hereby.
4. PAYMENT OBLIGATIONS. In consideration for the sale and
assignment of Loans hereunder, Assignee shall pay to Assignor, on the Assignment
Effective Date, an amount in Dollars equal to Assignee's Percentage of the
aggregate amount of Loans outstanding on the Assignment Effective Date. Any
interest, fees and other payments accrued prior to the Assignment Effective Date
with respect to the Assigned Amount shall be for the account of Assignor. Any
interest, fees and other payments accrued on and after the Assignment Effective
Date with respect to the Assigned Amount shall be for the account of Assignee.
Each of Assignor and Assignee agrees that it will hold in trust for the other
part any interest, fees or other amounts which it may receive to which the other
party is entitled pursuant to the preceding sentence and to pay to the other
party any such amounts which it may receive promptly upon receipt thereof.
5. CREDIT DETERMINATION; LIMITATIONS ON ASSIGNOR'S LIABILITY.
Assignee represents and warrants to Assignor, Borrowers, Agent and the other
Banks that it (a) is capable of making and has made and shall continue to make
its own credit determinations and analysis based upon such information as
Assignee deemed sufficient to enter into the transaction contemplated hereby and
not based on any statements or representations by Assignor; (b) meets the
requirements to be an assignee as set forth in Section 10.10 of the Credit
Agreement; (c) is able to fund the Loans and the Letters of Credit as required
by the Credit Agreement; and (d) will perform in accordance with their terms all
of the obligations which by the terms of the Credit Agreement and the Related
Writings are required to be performed by it as a Bank thereunder. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to Assignor and that Assignor makes no representation or
warranty of any kind to Assignee and shall not be responsible for (i) the due
execution, legality, validity, enforceability, genuineness, sufficiency or
collectability of the Credit Agreement or any Related Writing, (ii) any
representation, warranty or statement made in or in connection with the Credit
Agreement or any Related Writing, (iii) the financial condition or
creditworthiness of any Borrower or Guarantor, (iv) the performance of or
compliance with any of the terms or provisions of the Credit Agreement or any
Related Writing, (v) inspecting any of the property, books or records of any
Borrower, or (vi) the validity, enforceability, perfection, priority, condition,
value or sufficiency of any collateral securing or purporting to secure the
Loans or Letters of Credit. Neither Assignor nor any of its affiliates,
officers, directors, employees, agents or attorneys shall be liable for any
mistake, error of judgment, or action taken or omitted to be taken in connection
with the Loans, the Letters of Credit, the Credit Agreement or the Related
Writings, except for its or their own bad faith or willful misconduct. Assignee
appoints Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement as are delegated to Agent by the terms
thereof.
6. INDEMNITY. Assignee agrees to indemnify and hold Assignor
harmless against any and all losses, cost and expenses (including, without
limitation, attorneys' fees) and liabilities incurred
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by Assignor in connection with or arising in any manner from Assignee's
performance or non-performance of obligations assumed under this Assignment
Agreement.
7. SUBSEQUENT ASSIGNMENTS. After the Assignment Effective
Date, Assignee shall have the right pursuant to Section 10.10 of the Credit
Agreement to assign the rights which are assigned to Assignee hereunder,
provided that (a) any such subsequent assignment does not violate any of the
terms and conditions of the Credit Agreement, any Related Writing, or any law,
rule, regulation, order, writ, judgment, injunction or decree and that any
consent required under the terms of the Credit Agreement or any Related Writing
has been obtained, (b) the assignee under such assignment from Assignee shall
agree to assume all of Assignee's obligations hereunder in a manner satisfactory
to Assignor and (c) Assignee is not thereby released from any of its obligations
to Assignor hereunder.
8. REDUCTIONS OF AGGREGATE AMOUNT OF COMMITMENTS. If any
reduction in the Total Commitment Amount occurs between the date of this
Assignment Agreement and the Assignment Effective Date, the percentage of the
Total Commitment Amount assigned to Assignee shall remain the percentage
specified in Section 1 hereof and the dollar amount of the Commitment of
Assignee shall be recalculated based on the reduced Total Commitment Amount.
9. ACCEPTANCE OF AGENT; NOTICE BY ASSIGNOR. This Assignment
Agreement is conditioned upon the acceptance and consent of Agent and, if
necessary pursuant to Section 10.10A of the Credit Agreement, upon the
acceptance and consent of Borrowers; provided, that the execution of this
Assignment Agreement by Agent and, if necessary, by Borrowers is evidence of
such acceptance and consent.
10. ENTIRE AGREEMENT. This Assignment Agreement embodies the
entire agreement and understanding between the parties hereto and supersede all
prior agreements and understandings between the parties hereto relating to the
subject matter hereof.
11. GOVERNING LAW. This Assignment Agreement shall be governed
by the internal law, and not the law of conflicts, of the State of Ohio.
12. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For the purpose
hereof, the addresses of the parties hereto (until notice of a change is
delivered) shall be the address set forth under each party's name on the
signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement by their duly authorized officers as of the date first
above written.
ASSIGNOR:
Address: 000 Xxxxxxx Xxxxxx PNC BANK, NATIONAL ASSOCIATION
Xxxxxxxxxx XX 00000
Attn: Xxxxxxx Xxxx Xx., By: /s/ Xxxxxxx Xxxx, Xx.
Vice President -----------------------------------------
Phone: 000-000-0000 Xxxxxxx Xxxx, Xx., Vice President
Fax: 000-000-0000
ASSIGNEE:
Address: ________________________ SOVEREIGN BANK
________________________
Attn:___________________ By: /s/ Xxxxxxxx X. Xxxxxxx
Phone:__________________ -----------------------------------------
Fax:____________________ Xxxxxxxx X. Xxxxxxx, Vice President
Accepted and Consented to as of the 2nd Accepted and Consented to as of the 2nd
day of November, 1999: day of November, 1999:
PNC BANK, NATIONAL ASSOCIATION, ADVANCED LIGHTING
as Agent TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxx, Xx. By: /s/ Xxxxxxx Xxxx, Xx.,
-------------------------------------- -----------------------------------------
Xxxxxxx Xxxx, Xx., Vice President Xxxxxxx Xxxx, Xx., Vice President
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ANNEX 1
TO
ASSIGNMENT AND ACCEPTANCE AGREEMENT
On and after November 2, 1999 (the "Assignment Effective
Date"), the Commitment of Assignee and, after taking into account all other
assignments of Assignor taking place on the Assignment Effective Date, Assignor
shall be as follows:
I. ASSIGNEE'S COMMITMENT
A. Assigned Amount $10,000,000
B. Assignee's Commitment Percentage
under the Credit Agreement 16.66%
II. ASSIGNOR'S COMMITMENT
A. Assignor's Commitment Percentage
under the Credit Agreement 41.67%
B. Assignor's Commitment Amount
under the Credit Agreement $25,000,000
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