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Exhibit 10.3
FIRST AMENDMENT AGREEMENT
This First Amendment Agreement is effective as of the 17th day of
August, 1999, 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 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, that provides, among other things, for loans
aggregating Seventy-Five Million Dollars ($75,000,000), all upon certain terms
and conditions stated therein ("Credit Agreement");
WHEREAS, Borrowers, Agent and the Banks desire to amend the Credit
Agreement to add and 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. Article I of the Credit Agreement is hereby amended to delete the
definitions of "Canadian Base Rate Loan", "Canadian Borrowing Base", "Canadian
Exposure", "Canadian Fixed Rate Loan", "Canadian Letter of Credit Commitment",
"Canadian Letter of Credit Exposure", "Canadian Revolving Credit Commitment",
"Designated Lending Office", "Dollar Equivalent", "Indenture", "Required Banks",
"Total Unused Credit Availability" therefrom in their entirety and to insert in
place thereof, respectively, the following:
"Canadian Base Rate Loan" shall mean a Revolving Loan
described in subsection 3 of Section 2.1A hereof on which Canadian
Borrowers shall pay interest at a rate based on the Base Rate.
"Canadian Borrowing Base" shall mean an amount not in excess
of the sum of the following: (a) eighty-five percent (85%) of the
Dollar Equivalent of the aggregate amount due and owing on the Eligible
Receivables of each Canadian Borrower, plus (b) the lesser of (i) (A)
fifty-five percent (55%) of the Dollar Equivalent of the aggregate of
the Eligible
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Raw Materials of each Canadian Borrower, plus (B) sixty-five percent
(65%) of the Dollar Equivalent of the aggregate of the Eligible
Inventory of each Canadian Borrower, or (ii) the CAD Equivalent, at any
time of determination, of Three Million Dollars ($3,000,000); provided,
however that the amount of the Canadian Borrowing Base may be increased
or decreased by Agent and the Banks at any time and from time to time,
in the exercise of their sole discretion and each Canadian Borrower
consents to any such increases or decreases and acknowledges that
decreasing the amount of the Canadian Borrowing Base or increasing the
reserves may limit or restrict Canadian Revolving Loans requested by
Canadian Borrowers.
"Canadian Exposure" shall mean, at any time, the sum of (a)
the aggregate principal amount of all Canadian Revolving Loans
outstanding, and (b) the Canadian Letter of Credit Exposure.
"Canadian Fixed Rate Loan" shall mean a Revolving Loan
described in subsection 3 of Section 2.1A hereof on which Canadian
Borrowers shall pay interest at a rate based on the Eurodollar Rate.
"Canadian Letter of Credit Commitment" shall mean the
commitment of the Fronting Bank, on behalf of the Canadian Banks, to
issue Letters of Credit during the Commitment Period in an aggregate
outstanding face amount which shall never exceed One Million Dollars
($1,000,000), on the terms and conditions set forth in subsection 3(b)
of Section 2.1A hereof.
"Canadian Letter of Credit Exposure" shall mean the sum of (a)
the aggregate undrawn face amount of all issued and outstanding
Canadian Letters of Credit, and (b) the aggregate draws made on
Canadian Letters of Credit that are not yet reimbursed by Canadian
Borrowers or converted to Canadian Revolving Loans pursuant to
subsection 3(b) of Section 2.1A hereof.
"Canadian Revolving Credit Commitment" shall mean the
obligation hereunder of the Canadian Banks to make Canadian Revolving
Loans and to participate in the issuance of Canadian Letters of Credit
up to an aggregate principal amount outstanding at any time equal to
the lesser of (a) Six Million Dollars ($6,000,000) or (b) the Canadian
Borrowing Base (or such lesser amount as shall be determined pursuant
to Section 2.8 hereof).
"Designated Lending Office" shall mean the main office of
Agent.
"Dollar Equivalent" of any amount stated in Canadian Dollars
shall mean the Dollar equivalent of such amount, determined by Agent on
the basis of its spot rate at approximately 10:00 A.M. (Cleveland, Ohio
time) on the date two (2) Business Days before the date of such
determination, for the purchase of CAD with Dollars for delivery on the
date of such determination.
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"Indenture" shall mean that certain Indenture between Advanced
Lighting Technologies, Inc., as issuer, and The Bank of New York, as
trustee, dated as of March 18, 1998, as amended and as the same may,
with the prior written consent of Agent and the Required Banks (which
shall not be unreasonably withheld), from time to time be further
amended, restated, supplemented or otherwise modified.
"Required Banks" shall mean the holders of at least sixty-six
and two-thirds percent (66-2/3%) of the Commitment, or, if there is any
borrowing hereunder, the holders of at least sixty-six and two-thirds
percent (66-2/3%) of the aggregate amount of Dollars outstanding under
the Notes; provided, however that if one (1) Bank has at least
sixty-six and two-thirds percent (66-2/3%) but less than one hundred
percent (100%) of the Commitment, or the amount outstanding, as
applicable, then Required Banks shall mean such Bank and one (1) other
Bank.
"Total Unused Credit Availability" shall mean, at any time,
the difference between (a) the sum of (i) the U.S. Borrowing Base, (ii)
the UK Borrowing Base and (iii) the Canadian Borrowing Base, minus (b)
the sum of (i) the Revolving Credit Exposure and (ii) such reserves
against availability that are provided for under this Agreement and
determined in accordance with this Agreement.
2. Article I of the Credit Agreement is hereby amended to delete the
definitions of "CAD Equivalent", "Canadian Base Rate", "Canadian Domestic Rate"
and "Derived Canadian Fixed Rate" therefrom in their entirety.
3. The Credit Agreement is hereby amended to delete the first paragraph
of Section 2.1A therefrom and to insert in place thereof the following:
SECTION 2.1. AMOUNT AND NATURE OF CREDIT. Subject to the terms
and conditions of this Agreement, each Bank shall participate to the
extent hereinafter provided in making Loans to and issuing Letters of
Credit at the request of Borrowers in such aggregate amount as
Borrowers shall request pursuant to the Commitment; provided, however,
that in no event shall the aggregate principal amount of all Loans and
Letters of Credit outstanding under this Agreement be in excess of the
Total Commitment Amount.
4. The Credit Agreement is hereby amended to delete subsections (d) and
(f) of Section 2.2 therefrom and to insert in place thereof, respectively, the
following:
(d) with respect to any Canadian Revolving Loan, receipt by
Agent of a Notice of Loan from a Canadian Borrower, such notice to be
received by 11:00 A.M. (Cleveland, Ohio time) on the proposed date of
borrowing or conversion with respect to a Canadian Base Rate Loan, and,
with respect to the making, conversion or continuation of any Canadian
Fixed Rate Loans, by 11:00 A.M. (Cleveland, Ohio time) three (3)
Business Days prior to the proposed date of borrowing, conversion or
continuation. Agent shall notify each
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Canadian Bank of the date, amount and Interest Period (if applicable)
promptly upon the receipt of such notice, and, in any event, by 2:00
P.M. (Cleveland, Ohio time) on the date such notice is received. On the
date that any such Canadian Revolving Loan is to be made, each Canadian
Bank shall provide Agent, at the Designated Lending Office not later
than 3:00 P.M. (Cleveland, Ohio time), with the Dollar amount in
federal or other immediately available funds required of it;
(f) each request of (i) U.S. Borrower for a U.S. Base Rate
Loan shall be in an amount of not less than Five Hundred Thousand
Dollars ($500,000), increased by increments of One Hundred Thousand
Dollars ($100,000), and a Eurodollar Loan shall be in an amount of not
less than Five Million Dollars ($5,000,000), increased by increments of
Five Hundred Thousand Dollars ($500,000), (ii) a UK Borrowers for a UK
Base Rate Loan shall be in an amount of not less than Five Hundred
Thousand Dollars ($500,000), increased by increments of One Hundred
Thousand Dollars ($100,000), and a UK Fixed Rate Loan shall be in an
amount of not less than One Million Dollars ($1,000,000), increased by
increments of Five Hundred Thousand Dollars ($500,000), and (iii) a
Canadian Borrower for a Canadian Base Rate Loan shall be in an amount
of not less than One Million Dollars ($1,000,000), increased by
increments of One Hundred Thousand Dollars ($100,000), and a Canadian
Fixed Rate Loan shall be in an amount of not less than One Million
Dollars ($1,000,000), increased by increments of One Hundred Thousand
Dollars ($100,000);
5. The Credit Agreement is hereby amended to delete subsection 3 of
Section 2.1A therefrom and to insert in place thereof the following:
3. Canadian Credit Facility.
(a) Canadian Revolving Loans.
Subject to the terms and conditions of this Agreement, during
the Commitment Period (but subject to Section 2.11 hereof), the
Canadian Banks shall make a Canadian Revolving Loan or Canadian
Revolving Loans to Canadian Borrowers in such amount or amounts as
Canadian Borrowers may from time to time request. Canadian Borrowers
shall not request a Canadian Revolving Loan (and the Canadian Banks
shall not be obligated to make a Canadian Revolving Loan) if, after
giving effect thereto, (a) the Canadian Exposure would exceed the
Canadian Revolving Credit Commitment, or (b) the sum of (i) the UK
Exposure, (ii) the U.S. Revolving Exposure, (iii) the Canadian Exposure
and (iv) the U.S. Letter of Credit Exposure would exceed the Maximum
Revolving Credit Commitment Amount.
Canadian Borrowers shall have the option, subject to the terms
and conditions set forth herein, to borrow Canadian Revolving Loans,
maturing on the last day of the Commitment Period, by means of any
combination of (a) Canadian Base Rate Loans, or (b) Canadian Fixed Rate
Loans.
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Canadian Borrowers shall pay interest on the unpaid principal
amount of Canadian Base Rate Loans outstanding from time to time from
the date thereof until paid at the Base Rate from time to time in
effect. Interest on such Canadian Base Rate Loans shall be payable,
commencing June 1, 1999, and on the 1st day of each succeeding month
thereafter, and at the maturity thereof.
Canadian Borrowers shall pay interest on the unpaid principal
amount of each Canadian Fixed Rate Loan outstanding from time to time,
from the date thereof until paid, at the Derived Eurodollar Rate, fixed
in advance for each Interest Period as herein provided for each such
Interest Period. Interest on such Canadian Fixed Rate Loans shall be
payable on each Interest Adjustment Date with respect to an Interest
Period (provided that if an Interest Period exceeds three (3) months,
the interest must be paid every three (3) months, commencing three (3)
months from the beginning of such Interest Period).
At the request of Canadian Borrowers, subject to the notice
and other provisions of Section 2.2 hereof, the Canadian Banks shall
convert Canadian Base Rate Loans to Canadian Fixed Rate Loans at any
time and shall convert Canadian Fixed Rate Loans to Canadian Base Rate
Loans on any Interest Adjustment Date.
The obligation of Canadian Borrowers to repay the Canadian
Base Rate Loans and the Canadian Fixed Rate Loans made by each Canadian
Bank and to pay interest thereon shall be evidenced by a Canadian
Revolving Credit Note of Canadian Borrowers in the form of EXHIBIT C
hereto, and payable to the order of such Canadian Bank in the principal
amount of its pro rata share of the Canadian Revolving Credit
Commitment, or, if less, the aggregate unpaid principal amount of
Canadian Revolving Loans made hereunder by such Canadian Bank.
Subject to the provisions of this Agreement, Canadian
Borrowers shall be entitled under this subsection 3 of Section 2.1A to
borrow funds, repay the same in whole or in part and re-borrow
hereunder at any time and from time to time during the Commitment
Period.
(b) Canadian Letters of Credit.
Subject to the terms and conditions of this Agreement, during
the Commitment Period, such Canadian Bank as shall agree to be the
Fronting Bank for such Canadian Letter of Credit shall, in its own
name, but only as agent for the Canadian Banks, issue such Canadian
Letters of Credit for the account of a Canadian Borrower, as such
Canadian Borrower may from time to time request. No Canadian Borrower
shall request any Canadian Letter of Credit (and no Fronting Bank shall
be obligated to issue any Canadian Letter of Credit) if, after giving
effect thereto, (i) the Canadian Letter of Credit Exposure would exceed
the Canadian Letter of Credit Commitment, (ii) the Canadian Exposure
would exceed the amount of the Canadian Revolving Credit Commitment, or
(iii) the sum of (A) the Canadian Exposure, (B) the U.S. Revolving
Exposure, (C) the UK Exposure and (D) the U.S.
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Letter of Credit Exposure would exceed the Maximum Revolving Credit
Commitment Amount. The issuance of each Letter of Credit shall confer
upon each Canadian Bank the benefits and liabilities of a participation
consisting of an undivided pro rata interest in the Canadian Letter of
Credit to the extent of that Canadian Bank's percentage of the Canadian
Revolving Credit Commitment.
Each request for a Canadian Letter of Credit shall be
delivered to Agent not later than 11:00 A.M. (Cleveland, Ohio time)
three (3) Business Days prior to the day upon which the Canadian Letter
of Credit is to be issued. Each such request shall be in a form
acceptable to Agent and shall specify the face amount thereof, whether
such Canadian Letter of Credit is a commercial documentary or a standby
Letter of Credit, the account party, the beneficiary, the intended date
of issuance, the expiry date thereof, and the nature of the transaction
to be supported thereby. Concurrently with each such request, the
Canadian Borrower for whose benefit the Letter of Credit is to be
issued, shall execute and deliver to Agent an appropriate application
and agreement, being in the standard form of the Fronting Bank for such
letters of credit, as amended to conform to the provisions of this
Agreement if required by Agent. Agent shall give each Canadian Bank
notice of each such request for a Canadian Letter of Credit.
In respect of each Canadian Letter of Credit and the drafts
thereunder, if any, issued for the account of a Canadian Borrower,
Canadian Borrowers agree (i) to pay to Agent, for the pro rata benefit
of the Canadian Banks, (A) with respect to each Canadian Letter of
Credit that is a standby letter of credit, a commission based upon the
face amount of the Canadian Letter of Credit, which shall be paid
quarterly in arrears, on the first day of each July, October, January
and April, in an amount per annum equal to (1) the then current
Applicable Margin for Canadian Fixed Rate Loans (i.e. the Applicable
Margin for Canadian Fixed Rate Loans in effect on the date such
Canadian Letter of Credit is issued and, as to each quarterly payment
thereafter, the Applicable Margin for Canadian Fixed Rate Loans in
effect on the date of such quarterly payment), times (2) the average
undrawn face amount of such Canadian Letter of Credit during such
fiscal quarter, and (B) with respect to each Canadian Letter of Credit
that is a commercial documentary letter of credit, a non-refundable
commission based upon the face amount of the Canadian Letter of Credit,
which shall be paid on the date that any draw is made on a Canadian
Letter of Credit, in an amount equal to (1) the then current Applicable
Margin for Canadian Fixed Rate Loans, times (2) the amount drawn under
the Canadian Letter of Credit; (ii) to pay to Agent, for the sole
account of the Fronting Bank, an additional Canadian Letter of Credit
fee, which shall be paid on each date that such Canadian Letter of
Credit is issued or renewed at the rate of one-eighth percent (1/8 of
1%) of the face amount of such Canadian Letter of Credit; and (iii) to
pay to Agent for the sole account of the Fronting Bank, such other
issuance, amendment, negotiation, draw, acceptance, telex, courier,
postage and similar transactional fees as are generally charged by the
Fronting Bank under its fee schedule as in effect from time to time.
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Whenever a Canadian Letter of Credit is drawn, Canadian
Borrowers shall immediately reimburse the Fronting Bank for the amount
drawn. In the event that the amount drawn is not reimbursed by Canadian
Borrowers within one (1) Business Day of the drawing of such Canadian
Letter of Credit, at the sole option of Agent and the Fronting Bank,
Canadian Borrowers shall be deemed to have requested a Canadian
Revolving Loan, subject to the provisions of subsection 3(a) of Section
2.1A in the amount drawn. Such Canadian Revolving Loan shall be
evidenced by the Canadian Revolving Credit Notes. Each Canadian Bank
agrees to make a Canadian Revolving Loan on the date of such notice,
subject to no conditions precedent whatsoever. Each Canadian Bank
acknowledges and agrees that its obligation to make a Canadian
Revolving Loan pursuant to subsection 3(a) of Section ▇.▇▇ when
required by this subsection 3(b) of Section 2.1A is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the occurrence and continuance of an
Unmatured Event of Default or Event of Default, and that its payment to
Agent, for the account of the Fronting Bank, of the proceeds of such
Canadian Revolving Loan shall be made without any offset, abatement,
recoupment, counterclaim, withholding or reduction whatsoever and
whether or not such Canadian Bank's Canadian Revolving Credit
Commitment shall have been reduced or terminated. Canadian Borrowers
irrevocably authorize and instruct Agent to apply the proceeds of any
borrowing pursuant to this subsection 3(b) of Section 2.1A to
reimburse, in full, the Fronting Bank for the amount drawn on such
Canadian Letter of Credit. Each such Canadian Revolving Loan shall be
deemed to be a Canadian Base Rate Loan unless otherwise requested by
and available to Canadian Borrowers hereunder. Each Canadian Bank is
hereby authorized to record on its records relating to its Canadian
Revolving Credit Note such Canadian Bank's pro rata share of the
amounts paid and not reimbursed on the Canadian Letters of Credit.
6. The Credit Agreement is hereby amended to delete subparts (a), (b),
(c), (e) and (f) of Section 2.5 therefrom and to insert in place thereof,
respectively, the following:
SECTION 2.5. PAYMENT ON NOTES, ETC.
(a) PAYMENTS IN DOLLARS. All payments of principal, interest
and commitment and other fees shall be made to Agent in Dollars and in
immediately available funds for the account of the Banks. Payments must
be received at the Designated Lending Office not later than 11:00 A.M.
(Cleveland, Ohio time) to be deemed to have been made and received on
that day.
(b) [Intentionally omitted.]
(c) [Intentionally omitted.]
(e) PAYMENTS NET OF TAXES.
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(i) GENERAL PROVISIONS. All payments under this
Agreement shall be made absolutely net of, without deduction
or offset for, and altogether free and clear of, any and all
present and future taxes, levies, deductions, charges and
withholdings and all liabilities with respect thereto, under
the laws of the United States of America or any foreign
jurisdiction (or any state or political subdivision thereof),
excluding income and franchise taxes imposed on any Bank (and
withholding relating thereto) under the laws of the United
States of America, the United Kingdom or Canada or any other
foreign jurisdiction (or any state or political subdivision
thereof). If any Borrower is compelled by law to deduct any
such taxes or levies (other than such excluded taxes) or to
make any such other deductions, charges or withholdings, then
such Borrower shall pay such additional amounts as may be
necessary in order that the net payments after such deduction,
and after giving effect to any United States or foreign
jurisdiction (or any state or political subdivision thereof)
income taxes required to be paid by the Banks in respect of
such additional amounts, shall equal the amount of interest
provided in Section 2.1 hereof for each Loan plus any
principal then due.
(ii) FOREIGN FACILITIES. In addition, and
specifically with respect to the Canadian Revolving Credit
Commitment and the UK Revolving Credit Commitment:
(A) All payments on account of principal, if
any, and interest shall be made without set-off or
counterclaim and, unless otherwise required by law,
shall be made free and clear of and without deduction
for withholding tax or similar tax, present or
future, imposed by any taxing authority in Canada,
the United Kingdom or otherwise (in this subsection
(ii) hereof, a Tax). If a Borrower is required to
withhold or pay any Tax, it shall make the required
withholding and payment in accordance with and within
the time allowed by law, and shall nonetheless pay to
the appropriate Bank such additional amounts as are
necessary to cause such Bank actually to receive in
full all amounts (after taking account of any further
deduction or withholding which is required to be made
as a consequence of the payment of such additional
amounts) on account of principal and interest or
other fees or amounts owing to it hereunder, as if
such Tax had not been paid. As soon as practicable
after the date any Tax becomes due and payable, such
Borrower shall give to such Bank the original or a
copy of a receipt for the payment of the Tax, or if
such receipts are not issued by or received from the
taxing authority to which the Tax was paid, a
certificate of an officer of such Borrower,
confirming the date and amount of the payment so made
and reasonable details of the calculation of the
amount due.
(B) Such Borrower shall indemnify and save
such Bank harmless from and against any claim,
liability, loss, cost, expense (including without
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limitation legal, accounting and other professional
fees, and interest and penalty charges or fines
imposed by any taxing authority in respect of or
arising from non-payment of such Tax) to which such
Bank may be exposed or which it may incur, by reason
of such Borrower's failure to make punctual payment
of any amount required to be paid to a taxing
authority pursuant to subsection (A) hereof.
(C) [Intentionally omitted.]
(D) [Intentionally omitted.]
(f) PAYMENTS TO BANKS. Upon Agent's receipt of payments
hereunder, Agent shall immediately distribute, in immediately available
funds, to each Bank its ratable share, if any, of the amount of
principal, interest, and facility and other fees received by it for the
account of such Bank. Each Bank shall record any principal, interest or
other payment, the principal amounts of the Loans, all prepayments and
the applicable dates, including Interest Periods, with respect to the
Loans made and payments received by such Bank, by such method as such
Bank may generally employ; provided, however, that failure to make any
such entry shall in no way detract from the obligations of the
respective Borrowers under each such Note. The aggregate unpaid amount
of Loans, types of Loans and Interest Periods with respect to such
Loans set forth on the records of Agent shall be rebuttably presumptive
evidence of the principal and interest owing and unpaid on each Note.
7. The Credit Agreement is hereby amended to delete Section 2.6(b)
therefrom in its entirety and to insert in place thereof the following:
(b) PREPAYMENT FEES.
(i) (A) If U.S. Borrower terminates the Revolving Credit
Commitment on or prior to the date that is three (3) years from the
Closing Date, then U.S. Borrower shall pay a prepayment fee to Agent,
for the pro rata benefit of the Banks, in an amount equal to two
percent (2%) times the Maximum Revolving Credit Commitment Amount, or
(B) if U.S. Borrower terminates the Term Loan Commitment on or prior to
the date that is three (3) years from the Closing Date, then U.S.
Borrower shall pay a prepayment fee to Agent, for the pro rata benefit
of the Banks, in an amount equal to two percent (2%) times the Maximum
Term Loan Commitment Amount; provided, however, that so long as Agent
remains Agent under any replacement credit facility, then the
prepayment fees set forth in this Section 2.6(b)(i) shall not apply;
(ii) Without limiting anything else herein, in any case of
prepayment of a Eurodollar Loan, U.S. Borrower agrees that if the
reinvestment rate for Eurodollars, as quoted by the money desk of Agent
(the "Reinvestment Rate"), shall be lower than the Eurodollar Rate
applicable to the Eurodollar Loan that is intended to be prepaid
(hereinafter,
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"Last Eurodollar"), then U.S. Borrower shall, upon written notice by
Agent, promptly pay to Agent, for the benefit of the Banks, in
immediately available funds, a prepayment fee equal to the product of
(A) a rate (the "Prepayment Rate") which shall be equal to the
difference between the Last Eurodollar and the Reinvestment Rate, times
(B) the principal amount of the Eurodollar Loan that is to be prepaid,
times (C) (i) the number of days remaining in the Interest Period of
the Eurodollar Loan that is to be prepaid divided by (ii) three hundred
sixty (360). In addition, U.S. Borrower shall immediately pay directly
to Agent, for the account of the Banks, the amount of any additional
costs or expenses (including, without limitation, reasonable or
standard costs of telex, wires, or cables) incurred by Agent or the
Banks in connection with the prepayment, upon U.S. Borrower's receipt
of a written statement from Agent;
(iii) Without limiting anything else herein, in the case of
prepayment of a Canadian Fixed Rate Loan, Canadian Borrowers agree that
if the reinvestment rate for Eurodollars, as quoted by the money desk
of Agent (the "Reinvestment Rate"), shall be lower than the Eurodollar
Rate applicable to the Canadian Fixed Rate Loan that is intended to be
prepaid (hereinafter, "Last Eurodollar"), then Canadian Borrowers
shall, upon written notice by Agent, promptly pay to Agent at the
appropriate Designated Lending Office, for the benefit of the Canadian
Banks, in immediately available funds, a prepayment fee equal to the
product of (A) a rate (the "Prepayment Rate") which shall be equal to
the difference between the Last Eurodollar and the Reinvestment Rate,
times (B) the principal amount of the Canadian Fixed Rate Loan that is
to be prepaid, times (C) (1) the number of days remaining in the
Interest Period of the Canadian Fixed Rate Loan which is to be prepaid
divided by (2) three hundred sixty (360); and
(iv) Without limiting anything else herein, in any case of
prepayment of a Eurodollar Loan, UK Borrowers agree that if the
reinvestment rate for Eurodollars, as quoted by the money desk of Agent
("Reinvestment Rate"), shall be lower than the Eurodollar Rate
applicable to the Eurodollar Loan that is intended to be prepaid
(hereinafter, "Last Eurodollar"), then UK Borrowers shall, upon written
notice by Agent, promptly pay to Agent, for the benefit of the Banks,
in immediately available funds, a prepayment fee equal to the product
of (A) a rate (the "Prepayment Rate") which shall be equal to the
difference between the Last Eurodollar and the Reinvestment Rate, times
(B) the principal amount of the Eurodollar Loan that is to be prepaid,
times (C) (1) the number of days remaining in the Interest Period of
the Eurodollar Loan that is to be prepaid divided by (2) three hundred
sixty (360). In addition, UK Borrowers shall immediately pay directly
to Agent, for the account of the Banks, the amount of any additional
costs or expenses (including, without limitation, reasonable or
standard costs of telex, wires, or cables) incurred by Agent or the
Banks in connection with the prepayment, upon UK Borrowers' receipt of
a written statement from Agent;
8. The Credit Agreement is hereby amended to delete Section 2.7
therefrom in its entirety and to insert in place thereof the following:
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SECTION 2.7. FACILITY AND OTHER FEES.
(a) U.S. Borrower shall pay to Agent, for the ratable account
of the Banks, as a consideration for the Revolving Credit Commitments
hereunder, a facility fee from the Closing Date until the last day of
the Commitment Period equal to (i) the Facility Fee Rate times (ii) (A)
the Maximum Revolving Credit Commitment Amount, less (B) the average
aggregate principal amount of all Revolving Loans outstanding for the
time period for which such payment is being made, less (C) the average
aggregate amount of all issued and outstanding Letters of Credit for
the time period for which such payment is being made. The facility fee
shall be payable, in arrears, on July 1, 1999, and on the first day of
each October, January, April and July thereafter and on the last day of
the Commitment Period.
(b) U.S. Borrower shall pay to Agent, for the sole benefit of
Agent, all fees set forth in the Agent Fee Letter.
9. The Credit Agreement is hereby amended to delete subsection (c) of
Section 2.10 therefrom in its entirety and to insert in place thereof the
following:
(c) If the Canadian Exposure at any time exceeds the Canadian
Revolving Credit Commitment, Canadian Borrowers shall, as promptly as
practicable, but in no event later than the next Business Day, prepay
an aggregate principal amount of Canadian Revolving Loans sufficient to
bring the Canadian Exposure within the Canadian Revolving Credit
Commitment.
10. The Credit Agreement is hereby amended to delete Section 2.11
therefrom in its entirety and to insert in place thereof the following:
SECTION 2.11. CANADIAN REVOLVING CREDIT COMMITMENT. Borrowers
acknowledge that, as of the Closing Date, no "Canadian Bank" exists
hereunder to make Canadian Revolving Loans or issue Canadian Letters of
Credit pursuant to the Canadian Revolving Credit Commitment. Despite
the lack of a "Canadian Bank" hereunder, and with the understanding by
Borrowers that one (1) or more of the Companies may incur adverse tax
consequences as a result thereof, Borrowers desire that Canadian
Borrowers utilize the Canadian Commitment and have requested of the
Banks, and the Banks hereby agree, that, on an interim basis only,
until such time as a "Canadian Bank" shall become a Canadian Bank
hereunder, the Banks that are not Canadian Banks will make the Canadian
Revolving Loans and Agent (or a Fronting Bank if Agent is not the
Fronting Bank) will issue Canadian Letters of Credit hereunder. Such
interim Canadian Revolving Loans shall for all purposes hereunder and
under the other Loan Documents be Canadian Revolving Loans. More
specifically, Borrowers agree with Agent and the Banks that the
Canadian Revolving Loans made to Canadian Borrowers and Canadian
Letters of Credit issued at the request of Canadian Borrowers by or on
behalf of all of the Banks on an interim basis as described above shall
be secured by all of the Collateral, as defined in the Security
Documents
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executed by the Canadian Borrowers, regardless of the fact that those
Security Documents refer to the extending of credit by "the Canadian
Banks". The Canadian Borrowers shall execute a Canadian Revolving
Credit Note payable to each Bank in the amount of each Bank's
Commitment Percentage of the amount of the Canadian Revolving Credit
Commitment. In addition, all indemnifications of the Canadian Banks by
Canadian Borrowers shall be applicable to the Banks making the Canadian
Revolving Loans and participating in the issuance of Canadian Letters
of Credit to the extent of the Canadian Revolving Credit Commitment.
Furthermore, at such time as a Canadian Bank becomes a Bank hereunder,
(a) each Borrower agrees with Agent and the Banks that, in the event
that such Canadian Bank requires an amendment to this Agreement in
order to clarify and conform the interest rate and similar terms used
in this Agreement with the normal procedures and term (including
interest rate) typically used by such Canadian Bank, then each
Borrower, Agent and the Banks shall promptly execute such amendment
agreement, and (b) each Canadian Borrower agrees, upon request of
Agent, to execute new Canadian Revolving Credit Notes in form and
substance satisfactory to Agent and the Canadian Banks.
11. The Credit Agreement is hereby amended to delete Section 3.2
therefrom in its entirety and to insert in place thereof the following:
SECTION 3.2. TAX LAW, ETC. In the event that by reason of any
law, regulation or requirement or in the interpretation thereof by an
official authority, or the imposition of any requirement of any central
bank whether or not having the force of law, any Bank shall, with
respect to this Agreement or any transaction under this Agreement, be
subjected to any tax, levy, impost, charge, fee, duty, deduction or
withholding of any kind whatsoever (other than any tax imposed upon the
total net income of such Bank) and if any such measures or any other
similar measure shall result in an increase in the cost to such Bank of
making or maintaining any Fixed Rate Loan or in a reduction in the
amount of principal, interest or facility fee receivable by such Bank
in respect thereof, then such Bank shall promptly notify the
appropriate Borrowers stating the reasons therefor. The applicable
Borrowers shall thereafter pay to such Bank, upon demand from time to
time on Interest Adjustment Dates with respect to such Fixed Rate Loan,
as additional consideration hereunder, such additional amounts as shall
fully compensate such Bank for such increased cost or reduced amount. A
certificate as to any such increased cost or reduced amount, setting
forth the calculations therefor, shall be submitted by such Bank to the
appropriate Borrowers and shall, in the absence of manifest error, be
conclusive and binding as to the amount thereof.
If any Bank determines that such Bank has actually received or
realized any tax refund or any reduction of, or credit against, such
Bank's tax liabilities in or with respect to the taxable year in which
the additional amount is paid pursuant to this Section 3.2, such Bank
shall pay to such Borrower an amount that such Bank shall, in its sole
discretion, determine is equal to the net benefit, after tax, which was
obtained by such Bank in such year as a consequence of such tax
benefit; provided, however, that any Bank may determine in its
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sole discretion consistent with the policies of such Bank whether to
seek a tax benefit, and nothing in this Section 3.2 shall require a
Bank to disclose any confidential information to any Borrower
(including, without limitation, its tax returns). If a Bank later
determines, based on an audit or otherwise, that it was not entitled to
the full amount of any refund reimbursed to any Borrower as aforesaid
or that its net income taxes are not reduced by a credit or deduction
for the full amount of taxes reimbursed to any Borrower as aforesaid,
such Borrower, upon demand of such Bank, shall promptly pay to such
Bank the amount so refunded to which such Bank was not so entitled, or
the amount by which the net income taxes of such Bank were not so
reduced, as the case may be.
Notwithstanding any other provision of this Agreement, after
any such demand for compensation by any Bank, the appropriate
Borrowers, upon at least three (3) Business Days' prior written notice
to such Bank through Agent, may prepay any affected Fixed Rate Loan in
full or convert such Fixed Rate Loan to a Base Rate Loan regardless of
the Interest Period of any thereof. Any such prepayment or conversion
shall be subject to the prepayment fees set forth in Section 2.6
hereof.
12. The Credit Agreement is hereby amended to delete Section 3.3
therefrom in its entirety and to insert in place thereof the following:
SECTION 3.3. FIXED RATE LOANS UNAVAILABLE OR INTEREST RATE
UNASCERTAINABLE. In respect of any Fixed Rate Loan, in the event that
Agent shall have determined that dollar deposits of the relevant amount
for the relevant Interest Period for such Fixed Rate Loan are not
available to Agent in the applicable eurodollar market, or that, by
reason of circumstances affecting such market, adequate and reasonable
means do not exist for ascertaining the interest rate applicable to
such Interest Period, Agent shall promptly give notice of such
determination to the affected Borrowers and (a) any notice of a new
Fixed Rate Loan (or conversion of an existing Loan to a Fixed Rate
Loan) previously given by such Borrowers and not yet borrowed (or
converted, as the case may be) shall be deemed a notice to make a Base
Rate Loan, and (b) the affected Borrowers shall be obligated either to
prepay, or to convert to a Base Rate Loan, any outstanding Fixed Rate
Loan on the last day of the then current Interest Period with respect
thereto.
13. The Credit Agreement is hereby amended to add new subparts (j), (k)
and (l) to Section 5.3 thereof as follows:
(j) as frequently as Agent may request, but no less frequently
than monthly, a Borrowers' Certificate prepared by a Financial Officer
of U.S. Borrower;
(k) within twenty (20) days after the end of each month, an
accounts aging report and an inventory report of each Company, in form
and substance satisfactory to Agent and the Required Banks; and
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(l) a weekly delivery of Borrowers' assignment of sales.
14. The Credit Agreement is hereby amended to delete subpart (c) of
Section 8.5 therefrom and to insert in place thereof the following:
(c) Except as set forth in Section 2.11 of this Agreement,
only the Canadian Banks shall be obligated, upon the terms and
conditions set forth in this Agreement, to fund Canadian Revolving
Loans and participate in the issuance of Canadian Letters of Credit;
provided that, anything in this Agreement to the contrary
notwithstanding, upon the earlier of (i) the occurrence of an Event of
Default specified in Section 7.12 hereof, or (ii) the acceleration of
the Debt pursuant to Section 8.2 hereof (hereinafter, a "Equalization
Event"), each Bank agrees with the other Banks that if it, at any time,
shall obtain any Advantage over the other Banks, or any thereof, in
respect of the Debt (except under Article III hereof) then outstanding,
then such Bank having an Advantage shall purchase from the other Banks,
including the Canadian Banks, for cash and at par, such additional
participation in the Debt as shall be necessary to nullify the
Advantage. As used herein, "Equalization Date" shall mean the date that
the Equalization Event occurs.
15. The Credit Agreement is hereby amended to delete Schedule 1 thereto
in its entirety and to insert in place thereof a new Schedule 1 in the form of
Schedule 1 attached hereto.
16. The Credit Agreement is hereby amended to delete Exhibit C thereto
in its entirety and to substitute in place thereof a new Exhibit C in the form
of Exhibit C attached hereto.
17. Concurrently with the execution of this First Amendment Agreement:
(a) Canadian Borrowers shall execute and deliver to Agent for delivery
to the Banks new Canadian Revolving Credit Notes dated as of August 17, 1999,
and such Canadian Revolving Credit Notes shall be in the form and substance of
Exhibit C attached hereto; provided, however, that, upon each Bank's receipt of
a new Canadian Revolving Credit Note from Canadian Borrowers, such Bank shall
▇▇▇▇ its Canadian Revolving Credit Note being replaced thereby "Replaced" and
return the same to Agent for delivery to Canadian Borrowers;
(b) Borrowers shall cause each Guarantor of Payment to consent and
agree to and acknowledge the terms of this First Amendment Agreement;
(c) Borrowers shall deliver such other documents as may reasonably be
required by Agent in connection with this First Amendment Agreement; and
(d) Borrowers shall pay all legal fees and expenses of Agent in
connection with this First Amendment Agreement.
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18. 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
First Amendment Agreement; (b) the officers executing this First 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 First 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 First Amendment Agreement constitutes a
valid and binding obligation of each Borrower in every respect, enforceable in
accordance with its terms.
19. 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 First Amendment Agreement is a Related
Writing as defined in the Credit Agreement.
20. 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, affiliates and subsidiaries from any
and all such 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.
21. This First 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.
22. 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.
[Remainder of Page Intentionally Left Blank]
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23. 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 AMONG
BORROWERS, AGENT AND THE BANKS, OR ANY THEREOF.
ADVANCED LIGHTING TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
VENTURE LIGHTING POWER SYSTEMS, CANADIAN LIGHTING SYSTEMS
NORTH AMERICA INC. (f.k.a. HOLDING, INCORPORATED
Ballastronix Incorporated)
By: /s/ R. G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ R. G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- -------------------------------
Title: VP Finance Title: VP Finance
------------------------------ ----------------------------
PARRY POWER SYSTEMS LIMITED VENTURE LIGHTING EUROPE LTD.
By: /s/ S. D. ▇▇▇▇▇▇ By: /s/ W. ▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------- -------------------------------
Title: Sales Director Title: Director
------------------------------ ----------------------------
PNC BANK, NATIONAL ASSOCIATION, BANKBOSTON, N.A., as a Bank
as Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------- -------------------------------
Title: Vice President Title: Vice President
------------------------------ ----------------------------
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SCHEDULE 1
Financial Commitment Revolving Canadian UK Revolving Term Loan Maximum
Institution Percentage Credit Revolving Credit Commitment Amount
Commitment Credit Commitment Amount
Amount Commitment Amount
Amount
PNC Bank, 80% $40,000,000 $4,800,000 $4,800,000 $20,000,000 $60,000,000
National
Association
-------------------------------------------------------------------------------------------------------------------------
BankBoston, 20% $10,000,000 $1,200,000 $1,200,000 $ 5,000,000 $15,000,000
N.A.
-------------------------------------------------------------------------------------------------------------------------
Total 100% $50,000,000 $6,000,000 $6,000,000 $25,000,000 $75,000,000
-------------------------------------------------------------------------------------------------------------------------
Maximum $50,000,000
Revolving
Credit
Commitment
Amount
-------------------------------------------------------------------------------------------------------------------------
Maximum $25,000,000
Term Loan
Commitment
Amount
-------------------------------------------------------------------------------------------------------------------------
Total $75,000,000
Commitment
Amount
-------------------------------------------------------------------------------------------------------------------------
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EXHIBIT C
CANADIAN REVOLVING CREDIT NOTE
$________________ Cleveland, Ohio
August ___, 1999
FOR VALUE RECEIVED, the undersigned, VENTURE LIGHTING POWER SYSTEMS,
NORTH AMERICA INC. (f.k.a. Ballastronix Incorporated) and CANADIAN LIGHTING
SYSTEMS HOLDING, INCORPORATED (collectively "Canadian Borrowers", and
individually "Canadian Borrower"), jointly and severally, promise to pay on the
last day of the Commitment Period, as defined in the Credit Agreement (as
hereinafter defined), to the order of _________ ("Canadian Bank") at the
Designated Lending Office, as defined in the Credit Agreement, the principal sum
of
...................................................................... DOLLARS
or the aggregate unpaid principal amount of all Canadian Revolving Loans made by
Canadian Bank to Canadian Borrowers pursuant to subsection 3 of Section 2.1A of
the Credit Agreement, whichever is less, in lawful money of the United States of
America. As used herein, "Credit Agreement" means the Credit Agreement dated as
of May 21, 1999, among Advanced Lighting Technologies, Inc., as U.S. Borrower,
Canadian Borrowers and certain Subsidiaries as UK Borrowers, the banks named
therein and PNC Bank, National Association, as Agent, as the same may from time
to time be restated, amended or otherwise modified. Capitalized terms used
herein shall have the meanings ascribed to them in the Credit Agreement.
Canadian Borrowers also promise to pay interest on the unpaid principal
amount of each Canadian Revolving Loan from time to time outstanding, from the
date of such Canadian Revolving Loan until the payment in full thereof, at the
rates per annum which shall be determined in accordance with the provisions of
subsection 3 of Section 2.1A of the Credit Agreement. Such interest shall be
payable on each date provided for in such subsection 3 of Section 2.1A;
provided, however, that interest on any principal portion which is not paid when
due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Canadian Base Rate Loans and Canadian Fixed Rate Loans, and payments of
principal thereof, shall be shown on the records of Canadian Bank by such method
as Canadian Bank may generally employ; provided, however, that failure to make
any such entry shall in no way detract from the obligations of Canadian
Borrowers under this Note.
If this Note shall not be paid at maturity, whether such maturity
occurs by reason of lapse of time or by operation of any provision for
acceleration of maturity contained in the Credit Agreement, the principal hereof
and the unpaid interest thereon shall bear interest, until paid, at a rate per
annum
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which shall be the Default Rate. All payments of principal of and interest on
this Note shall be made in immediately available funds.
This Note is one of the Canadian Revolving Credit Notes referred to in
the Credit Agreement. Reference is made to the Credit Agreement for a
description of the right of the undersigned to anticipate payments hereof, the
right of the holder hereof to declare this Note due prior to its stated
maturity, and other terms and conditions upon which this Note is issued.
Except as expressly provided in the Credit Agreement, each Canadian
Borrower expressly waives presentment, demand, protest and notice of any kind.
This Note shall be governed by and construed in accordance with the
laws of the State of Ohio and the respective rights and obligations of Canadian
Borrower and Canadian Bank shall be governed by Ohio law, without regard to
principles of conflict of laws. Each Canadian Borrower hereby irrevocably
submits to the non-exclusive jurisdiction of any Ohio state or federal court
sitting in Cleveland, Ohio, over any action or proceeding arising out of or
relating to this Note, and each Canadian Borrower hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and determined
in such Ohio state or federal court. Each Canadian Borrower, on behalf of itself
and its Subsidiaries, hereby irrevocably waives, to the fullest extent permitted
by law, any objection it may now or hereafter have to the laying of venue in any
action or proceeding in any such court as well as any right it may now or
hereafter have to remove such action or proceeding, once commenced, to another
court on the grounds of FORUM NON CONVENIENS or otherwise. Each Canadian
Borrower agrees that a final, nonappealable judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgement or in any other manner provided by law.
[Remainder of page intentionally left blank.]
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EACH CANADIAN BORROWER WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
BORROWERS, 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.
VENTURE LIGHTING POWER SYSTEMS,
NORTH AMERICA INC. (f.k.a. Ballastronix
Incorporated)
By:_____________________________________
Title:__________________________________
and_____________________________________
Title:__________________________________
CANADIAN LIGHTING SYSTEMS
HOLDING, INCORPORATED
By:_____________________________________
Title:__________________________________
and_____________________________________
Title:__________________________________
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GUARANTOR ACKNOWLEDGMENT
Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing First 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.
Advanced Lighting, Inc.
Advanced Lighting Systems, Inc.
APL Engineered Materials, Inc.
Ballastronix (Delaware), Inc.
Bio Light, Inc.
Bright Ideas Advertising and Design, Inc.
Energy Efficient Products, Inc.
HID Recycling, Inc.
Light Resources International, Inc.
Metal Halide Controls, Inc.
Metal Halide Technologies, Inc.
Microsun Technologies, Inc.
Specialty Discharge Lighting, Inc.
Venture Lighting International, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President of
each of the companies listed above
Deposition Sciences, Inc.
▇▇▇▇▇▇ Lighting, Inc.
Ruud Lighting, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, signing for each of
companies listed above by Power of
Attorney
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