ASSIGNMENT AGREEMENT AND
AMENDMENT TO INCREASE AGGREGATE COMMITMENT
This Assignment Agreement and Amendment to Increase Aggregate
Commitment (this "Agreement") by and among Bank One, NA and Wachovia Bank, N.A.
(each an "Assignor"), Dresdner Bank AG New York & Grand Cayman Branches (the
"Assignee" or the "New Lender"), Acuity Brands, Inc., Acuity Lighting Group,
Inc. and Acuity Specialty Products Group, Inc. (collectively, the "Borrowers"),
and Bank One, NA, in its capacity as Administrative Agent under the Credit
Agreement (as defined below) is dated as of May 14, 2002. The parties hereto
agree as follows:
1. PRELIMINARY STATEMENT. Each Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time
to time is herein called the "Credit Agreement") described in Item 1
of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. Each Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from each
Assignor, an interest in and to each Assignor's rights and obligations
under the Credit Agreement and the other Loan Documents, such that
after giving effect to such assignment the Assignee shall have
purchased from each Assignor pursuant to this Agreement the percentage
interest specified in Item 3 of Schedule 1 of all of such Assignor's
outstanding rights and obligations under the Credit Agreement and the
other Loan Documents relating to the facilities listed in Item 3 of
Schedule 1. The aggregate amount of the Commitment (or Outstanding
Credit Exposure, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4(a) of
Schedule 1.
3. EFFECTIVE DATE. The effective date of this Agreement (the "Effective
Date") shall be the later of the date specified in Item 5 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by the
Administrative Agent) after this Agreement, together with any consents
required under the Credit Agreement, are delivered to the
Administrative Agent. In no event will the Effective Date occur if the
payments required to be made by the Assignee to the Assignors on the
Effective Date are not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment of
the Commitment and/or Outstanding Credit Exposure hereunder, the
Assignee shall pay each Assignor, on the Effective Date, the amount
agreed to by the Assignors and the Assignee. On and after the
Effective Date, the Assignee shall be entitled to receive from the
Administrative Agent all payments of principal, interest and fees with
respect to the interest assigned hereby. The Assignee will promptly
remit to the applicable Assignor any interest on Outstanding Credit
Exposure and fees received from the Administrative Agent which relate
to the portion of the Commitment or Outstanding Credit Exposure
assigned to the Assignee by such Assignor hereunder for periods prior
to the Effective Date and not previously paid by the Assignee to such
Assignor. In the event that any party hereto receives any payment to
which any other party hereto is entitled under this
Agreement, then the party receiving such amount shall promptly remit
it to the applicable party hereto.
5. RECORDATION FEE. The recordation fee required to be paid to the
Administrative Agent in connection with this Agreement is hereby
waived.
6. REPRESENTATIONS OF EACH ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. Each Assignor, individually and not jointly, represents and
warrants that (i) it is the legal and beneficial owner of the interest
being assigned by it hereunder, (ii) such interest is free and clear
of any adverse claim created by such Assignor and (iii) the execution
and delivery of this Agreement by such Assignor is duly authorized. It
is understood and agreed that the assignment and assumption hereunder
are made without recourse to any Assignor and that no Assignor makes
any other representation or warranty of any kind to the Assignee.
Neither any Assignor nor any of their respective officers, directors,
employees, agents or attorneys shall be responsible for (i) the due
execution, legality, validity, enforceability, genuineness,
sufficiency or collectability of any Loan Document, including, without
limitation, documents granting such Assignor and the other Lenders a
security interest in assets of the Borrowers or any guarantor, (ii)
any representation, warranty or statement made in or in connection
with any of the Loan Documents, (iii) the financial condition or
creditworthiness of the Borrowers or any guarantor, (iv) the
performance of or compliance with any of the terms or provisions of
any of the Loan Documents, (v) inspecting any of the property, books
or records of the Borrowers, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any
collateral securing or purporting to secure the Loans or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in
connection with the Loans or the Loan Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements requested by the Assignee and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Agreement, (ii) agrees that it will, independently and without
reliance upon any Agent, the Arranger, any Assignor or any other
Lender and based on such documents and information at it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (iii) appoints
and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated
to such Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (iv) confirms that the execution and
delivery of this Agreement by the Assignee is duly authorized, (v)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to
be performed by it as a Lender, (vi) agrees that its payment
instructions and notice instructions are as set forth in the
attachment to Schedule 1, (vii) confirms that none of the funds,
monies, assets or other consideration being used to make the purchase
and assumption hereunder are "plan assets" as defined under ERISA and
that its rights, benefits and interests in and under the Loan
Documents will not be "plan assets" under ERISA, (viii) agrees to
indemnify and hold each Assignor harmless against all losses, costs
and expenses (including, but not limited to, reasonable
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attorneys' fees) and liabilities incurred by such Assignor in
connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Agreement, and
(ix) if applicable, attaches the forms prescribed by the Internal
Revenue Service of the United States certifying that the Assignee is
entitled to receive payments under the Loan Documents without
deduction or withholding of any United States federal income taxes.
8. INCREASE OF AGGREGATE COMMITMENT; REALLOCATION OF OUTSTANDING LOANS.
(A) Effective as of the Effective Date and subject to
the Administrative Agent's receipt of duly executed copies of this
Agreement from each of the parties hereto, the Credit Agreement is
hereby amended pursuant to Section 2.24 thereof to increase the
Aggregate Commitment to $105,000,000, and the Commitment of the New
Lender (after giving effect to such increase of the Aggregate
Commitment and the assignments from the Assignors to the Assignee
contemplated in this Agreement) shall be $12,500,000. From and after
the Effective Date, the New Lender shall be deemed to be a Lender for
all purposes under the Credit Agreement.
(B) On the Effective Date, the Administrative Agent
shall administer the reallocation of any outstanding Loans ratably
among the Lenders after giving effect to the increase in the Aggregate
Commitment contemplated by this Agreement. In connection with such
reallocation, on the Effective Date, (a) each Lender party to the
Credit Agreement prior to the effectiveness of this Agreement (each an
"Existing Lender") shall be deemed to sell, grant, assign and convey
to the New Lender, without recourse, warranty, or representation of
any kind, except as specifically provided herein, an undivided
percentage in such Existing Lender's right, title and interest in and
to its outstanding Loans in the respective dollar amounts and
percentages necessary so that, from and after such sale, each such
Existing Lender's outstanding Loans shall equal such Existing Lender's
Pro Rata Share (calculated after giving effect to the increase in the
Aggregate Commitment contemplated by this Agreement) of the
outstanding Loans, and (b) the New Lender hereby purchases and accepts
such grant, assignment and conveyance from the Existing Lenders. The
New Lender hereby agrees that its respective purchase price for the
portion of the outstanding Loans purchased hereby shall equal the
respective dollar amount necessary so that, from and after such
payments, the New Lender's outstanding Loans shall equal the New
Lender's Pro Rata Share (calculated after giving effect to the
increase in the Aggregate Commitment contemplated by this Agreement)
of the outstanding Loans. The New Lender shall pay such amount on the
Effective Date by wire transfer of immediately available funds to the
Administrative Agent, for the account of the Existing Lenders. The New
Lender hereby acknowledges and agrees that the New Lender has entered
into this Agreement and the Credit Agreement on the basis of its own
independent investigation and has not relied upon, and will not rely
upon, any explicit or implicit written or oral representation,
warranty or other statement of the Lenders or the Administrative Agent
concerning the authorization, execution, legality, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the other Loan Documents.
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9. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. The Borrowers hereby
represent and warrant that (i) this Agreement and the Credit Agreement
as previously executed and as modified hereby, constitute legal, valid
and binding obligations of the Borrowers and are enforceable against
the Borrowers in accordance with their terms and (ii) no Default or
Unmatured Default has occurred and is continuing. Upon the
effectiveness of this Agreement and after giving effect hereto, the
Borrowers hereby reaffirm all covenants, representations and
warranties made in the Credit Agreement as modified hereby, and agree
that all such covenants, representations and warranties shall be
deemed to have been remade as of the Effective Date (except to the
extent any such representation or warranty is stated to relate solely
to an earlier date, in which case such representation or warranty
shall have been true and correct in all material respects on and as of
such earlier date).
10. GOVERNING LAW. This Agreement shall be governed by the internal law,
including 735 ILCS 105/5-1 et seq., but otherwise without regard to
the law of conflicts, of the State of Illinois.
11. NOTICES. Notices shall be given under this 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 addresses set forth in the Credit Agreement, and, in the case of
the Assignee, on the attachment to Schedule 1 hereto.
12. COUNTERPARTS; DELIVERY BY FACSIMILE. This Agreement may be executed in
counterparts. Transmission by facsimile of an executed counterpart of
this Agreement shall be deemed to constitute due and sufficient
delivery of such counterpart and such facsimile shall be deemed to be
an original counterpart of this Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Agreement by executing Schedule 1 hereto as of the date
first above written.
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SCHEDULE I
to Agreement
1. Description and Date of Credit Agreement: 364-Day Revolving Credit
Agreement, dated April 8, 2002, among Acuity Brands, Inc., a Delaware
corporation (the "Company"), the Subsidiary Borrowers from time to time parties
thereto, the Lenders named therein, and Bank One, NA (Main Office -- Chicago),
as the Administrative Agent, as the same may be amended, restated, supplemented
or otherwise modified from time to time
2. Date of Agreement: May 14, 2002
3. Amounts (As of Date of Item 2 above):
a. Assignee's percentage of the Percentage purchased by Total percentage of
Aggregate Commitment the Assignee under the Assignee (after giving
Agreement (before giving effect to the assignments
effect to the increase in and increase in the
the Aggregate Commitment Aggregate Commitment contemplated
by Section 8 contemplated by the of the Agreement)
Agreement)
9.7560976% 11.9047619%
B. Amount of the Aggregate Amount Purchased From Bank Amount Purchased From
Commitment purchased under the One, NA Wachovia Bank, N.A.
Agreement
$5,000,000 $5,000,000
4. Assignee's Commitment:
After giving effect to the After giving effect to the
assignments contemplated assignments and increase
by the Agreement in the Aggregate
Commitment contemplated by
the Agreement
$10,000,000 $12,500,000
5. Proposed Effective Date: May 14, 2002
6. Non-standard Recordation Fee
Arrangement The recordation fee has
been waived.
Accepted and Agreed:
BANK ONE, NA, as an Assignor DRESDNER BANK AG NEW YORK & GRAND
CAYMAN BRANCHES, as the Assignee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ -------------------------------
Title: Director Title: Director
WACHOVIA BANK, N.A.,
as an Assignor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title: Vice President
ACCEPTED AND CONSENTED TO ACCEPTED AND CONSENTED TO
BY: BY:
------------------------------ -------------------------------
ACUITY BRANDS, INC. BANK ONE, NA (MAIN OFFICE --
CHICAGO), as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------ -------------------------------
Title: EVP & CFO Title: Director
ACUITY LIGHTING GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: EVP & CFO
ACUITY SPECIALTY PRODUCTS
GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: EVP & CFO
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Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT AND AMENDMENT TO INCREASE
AGGREGATE COMMITMENT
ASSIGNEE'S ADMINISTRATIVE INFORMATION SHEET (ATTACHED)
BANK ONE INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
----------------------- -----------------------------
Name: Name:
Telephone No.: (312) Telephone No.: (312)
Fax No.: (312) Fax No.: (312)
Bank One Telex No.: 190201
(Answerback: FNBC UT)
INITIAL FUNDING STANDARDS:
-------------------------
Libor - Fund 2 days after rates
are set.
BANK ONE WIRE INSTRUCTIONS: Bank One, NA, ABA # ▇▇▇▇▇▇▇▇▇
--------------------------
LS2 Incoming Account # 481152860000
Ref: Acuity Brands, Inc.
ADDRESS FOR NOTICES FOR BANK ONE: ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------
Attn: Agency Compliance Division,
Suite IL1-0353
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
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