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December 13, 1999
GENLYTE XXXXXX GROUP NOVA SCOTIA ULC
4360 Brownsboro road, suite 300
P.O. Box 35120
Xxxxxxxxxx, Xxxxxxxx, 00000
ATTENTION: XX. XXXXX XXXXX
FINANCING AGREEMENT
Dear Xxxxx,
We are pleased to offer the Borrower Genlyte Xxxxxx Group Nova Scotia ULC, the
following credit facility, subject to the terms and conditions outlined below:
BORROWER: GENLYTE XXXXXX GROUP NOVA SCOTIA,
UNLIMITED LIABILITY COMPANY.
(referred to herein as the "Borrower")
LENDER: The Toronto-Dominion Bank, through its Houston
Agency, 000 Xxxxxx, xxxxx 0000, Xxxxxxx, Xxxxx,
X.X.X., 00000 (the "Bank")
TYPE OF CREDIT
AND AMOUNT:
1) 364 days, Committed non-revolving facility for up
to C$10,000,000.
Available at the Borrower's option by way of:
Prime Rate Based Loans in C$ ("Prime Based
Loans"); New York Prime Rate Based Loans in US$
("NY Prime Based Loans"); London Interbank
Offered Rate Loans in C$ and/or US$ ("LIBOR").
Libor: Terms between 30 and 180 days;
(the "Facility")
PURPOSE: 1) To provide funds to repay 33.3% of the Bridge
Loan used for the acquisition of the assets
(including goodwill) of Ledalite Architectural
Products Inc.
AVAILABILITY: 1) The facility shall be drawn on a Business day, no
later than December 31st, 1999 (the "Maturity
date"), unless otherwise extended at the sole
discretion of the Bank, as herein provided.
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REPAYMENT: Principal shall be repayable on the Maturity
Date.
MATURITY DATE
AND EXTENSION: a) Upon written notice from the Borrower to Bank,
received no earlier than 60 days and no later
than 30 days prior to the Maturity Date, the
Borrower may request an extension of the facility
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 the Bank may
require.
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 December 17th, 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.
d) 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 last day of 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
PREPAYMENT Any portion of the loan which bears interest
based on floating rate may be prepaid 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
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result of any prepayment. Any portion of the
advance prepaid may not to 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.
INTEREST RATES
AND FEES
1) PRIME / NY PRIME SPREAD: 0 bp
LIBOR SPREAD: 50 bp per annum
NY Prime Rate means the rate of interest per
annum (based on a 365/366 day year) established
by the Bank from time to time as the reference
rate of interest for the determination of
interest rates that the Bank charges to customers
of varying degrees of creditworthiness for US
dollar loans made by it in Canada.
Prime Rate means the rate of interest per annum
(based on a 365/366 day year) established and
reported by the Bank to the Bank of Canada from
time to time as the reference rate of interest
for determination of interest rates that the Bank
charges to customers of varying degrees of
creditworthiness in Canada for Canadian dollar
loans made by it in Canada.
LIBOR means the rate of interest per annum (based
on a 360 day year) as determined by the Bank
(rounded upwards, if necessary to the nearest
whole multiple of 1/16th of 1%) at which the Bank
may make available United States dollars which
are obtained by the Bank in the Interbank Euro
Currency Market, London, England at approximately
11:00 a.m. (Toronto time) on the second business
day before the first day of, and in an amount
similar to, and for the period similar to the
interest period of, such advance.
Any interest rate based on a period less than a
year expressed as an annual rate for the purposes
of the Interest Act (Canada) is equivalent to
such determined rate multiplied by the actual
number of days in the calendar year in which the
same is to be ascertained and divided by the
number of days in the period upon which it was
based.
INTEREST
CALCULATION
AND PAYMENT Interest on Prime Based Loans and NY Prime Based
Loans is calculated daily and payable monthly in
arrears based on the number of days which the
loan is outstanding.
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Interest on LIBOR Loans is calculated and payable
on the earlier of contract maturity or quarterly
in arrears, for the number of days in the LIBOR
interest period.
Interest is payable both before and after demand,
default and judgment.
DRAWDOWN: 1) As required upon satisfaction of conditions
precedent, but no later than December 31st, 1999.
PRIME RATE BASED LOANS AND/OR NEW YORK PRIME RATE
BASED LOANS
The minimum amount of drawdown by way of Prime
Based Loans and/or NY Prime Based loans is
$500,000.
LIBOR
The Borrower shall advise the Bank of the
requested LIBOR contract maturity or interest
period. The Bank shall have the discretion to
restrict the LIBOR contract maturity.
The minimum amount of a drawdown by way of a
LIBOR loan is $1,000,000, and shall be in
multiples of $500,000 thereafter.
The Borrower will provide the Bank with 3
business days notice of a requested LIBOR Loan.
The Borrower shall give the Bank in the case of
LIBOR advances at least 3 business days
irrevocable prior written notice in the form of a
Request for advance; or telephonic notice
immediately followed by a Request for advance;
provided, however, that the Borrower's failure to
confirm any telephonic notice with a Request for
advance shall not invalidate any notice so given.
TAXATION
ON PAYMENTS All payments made by the Borrower to the Bank
will be made free and clear of all present and
future taxes (excluding the Bank's income taxes),
withholdings or deductions of whatever nature. If
these taxes, withholdings or deductions are
required by applicable law 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
any such taxes, withholding or deduction.
SECURITY The following security shall be provided prior to
first drawdown, and shall be acceptable to the
Bank and its legal counsel:
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Irrevocable and Unconditional Standby Letter of
Credit in favor of the Bank as the beneficiary
thereof for an amount of C$10,000,000 or its US$
equivalent, issued by a recognized financial
institution satisfactory to the Bank in its sole
discretion. The letter of Credit shall bear an
initial term of no less than 364 days.
If the Letter of Credit is issued in US dollars,
to the extent, if any that at any time the Letter
of Credit value is less than the equivalent
amount of the facility due to fluctuations in the
exchange rate by which such equivalence is
determined (a "deficiency"), then upon demand by
Bank:
(1) Borrower shall immediately prepay the amount
of the deficiency, or
(2) deposit the amount of the deficiency with
the Bank and grant it a security interest in
the cash collateral, or
(3) immediately increase the amount of the
outstanding Letter of Credit, sufficient
enough to satisfy the Bank.
To ensure that there is appropriate coverage in
favor of the Bank in the event of an adverse
currency fluctuation between the US$ and CDN$,
Genlyte Xxxxxx Group LLC shall upon issuance of
the LC, provide to the Bank a written undertaking
to pay to the Bank on the date the Bank demands
payment from the financial institution which
issued the letter of credit, a sum equal to the
difference, if any, between the proceeds received
from the financial institution which issued the
letter of credit and the then outstanding
indebtedness owing by the Borrower to the Bank as
expressed in CDN$. This undertaking shall remain
in full force and effect so long as there exists
any outstanding indebtedness owing to the Bank by
the Borrower.
(All of the above security shall be referred to
collectively in this agreement as "Bank
Security").
CONDITIONS
PRECEDENT The obligation of the Bank to make and keep on
its books any loan hereunder is subject to the
following conditions precedent:
a) The Bank shall have received the following
documents which shall be in form and substance
satisfactory to the Bank and its legal counsel:
i) Copy of this Financing Agreement and the
note, if any, each duly executed and
delivered by the Borrower, with the
Letter of Credit attached in form and
substance satisfactory to the Bank and
duly executed by an authorized officer
of the issuer thereof;
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ii) Certified copies of the Board
resolutions authorizing the Borrower's
borrowing hereunder and the execution,
delivery and performance of this
Financing Agreement and the note, if
any;
iii) Incumbency certificates showing the
names, titles and signatures of the
Borrower's officers authorized to
execute and deliver this Financing
Agreement and the note, if any, and
otherwise to act with respect to this
Financing Agreement and the note, if
any;
iv) A copy of The Genlyte Group Incorporated
September 30th, 1999 quarterly financial
statements, and related Genlyte Xxxxxx
Group LLC attachments, accompanied by a
compliance certificate from the Chief
Financial Officer of Genlyte Xxxxxx
Group LLC confirming that they are in
compliance with the Credit Agreement
dated August 30th, 1998 among Genlyte
Xxxxxx Group LLC and its Banking
syndicate;
v) A copy of the last Form 10-Q and 10-K
for The Genlyte Group Incorporated and
Xxxxxx Industries Inc, respectively;
vi) All of the Bank Security (including the
guarantee of Genlyte Xxxxxx Group LLC)
and supporting resolutions and
solicitors letter of opinion required
hereunder;
vii) Any other documents deemed necessary by
the bank and its legal counsel;
b) The Borrower has paid the Arrangement fees,
Administration fees and all legal expenses
incurred by the Bank in connection with this
Financing and/or the Bank Security.
c) No Event of Default have occurred.
REPRESENTATIONS
AND WARRANTIES The Borrower hereby represents and warrants, which
representations and warranties shall be deemed to be
continually repeated so long as any amounts remain
outstanding and unpaid under this agreement or so long
as the commitment under this Agreement remains in
effect, that:
a) The Borrower is a corporation duly incorporated
and organized, validly existing and in good
standing under the laws of Nova Scotia and has
adequate corporate power and authority to carry
on its business, own property, borrow monies and
enter into agreements therefor, execute and
deliver the documents required hereunder, and
observe and perform the terms and provisions of
this agreement.
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b) There are no laws, statutes or regulations
applicable to or binding upon the Borrower and no
provisions in its Articles or in any by-laws,
resolutions, contracts, agreements, or
arrangements which would contravene, breach,
default or violate the execution, delivery,
performance, observance, of any terms of this
Agreement.
c) No Event of Default has occurred nor has any
event occurred which, in time, would constitute
an Event of Default under this Agreement or which
would constitute a default under any other
agreement.
d) There are no actions, suits or proceedings,
including appeals or applications for review, or
any knowledge of pending actions etc., against
the Borrower and its subsidiaries, before any
court or administrative agency which would result
in any material adverse change in the property,
assets, financial conditions, and business or
operations of the Borrower.
e) All material authorizations, approvals, consents,
licenses, exemptions, filings, registrations,
notarizations and other requirements of
governmental, judicial and public bodies and
authorities required reasonably necessary to
carry on its business have been or will be
obtained or effected and are or will be in full
force and effect.
f) The financial statements delivered to the Bank
fairly present the present financial position of
the Borrower and Genlyte Xxxxxx Group LLC, and
have been prepared by their auditors in
accordance with Generally Accepted Accounting
Principles.
g) All the remittances required to be made by the
Borrower to the federal, provincial 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
(both provincial and federal), corporate income
taxes, payroll taxes and workmen's compensation
dues are currently paid and up to date.
POSITIVE
COVENANTS As long as any loans or commitment of the Bank remain
outstanding, the Borrower will:
a) Cause to be paid all amounts, interest and fees
on the dates, times and place specified herein or
under any other agreement between the Bank and
the Borrower.
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b) Cause The Genlyte Group Incorporated to provide
quarterly audited consolidated financial
statements and annual audited consolidated
financial statements within 60 and 120 days of
each respective period and related Genlyte Xxxxxx
Group LLC attachments, accompanied by a
compliance certificate from the Chief Financial
Officer confirming that all terms and conditions
are in compliance with this Agreement and that no
event has occurred that is, or with the passing
of time may become, an Event of Default under
this Agreement or a default under any other
agreement.
c) Provide the Bank with information and financial
data as it may reasonably request from time to
time.
d) The Borrower agrees that in the event it provides
any security interest, assignment or other
interest in any of its assets or more favorable
covenants and/or pricing to any other secured
party or secured lender, that it shall provide
equal ranking and equal value security over such
assets and covenants and/or pricing to the Bank.
EVENTS OF
DEFAULT The Bank has the right to accelerate the payment of
principal and accrued interest under the facility, and
to cancel any undrawn portion of the facility
hereunder, at any time after the occurrence of any one
of the following Events of Default:
a) The failure of the Borrower to provide to the
Bank the irrevocable and unconditional standby
letter of credit as referred to under the heading
"Security".
b) Nonpayment of principal when due or nonpayment of
interest or fees within 3 business days of when
due or when demanded.
c) The failure of the Borrower and/or Genlyte Xxxxxx
Group LLC to fulfill any of the terms and
conditions contained in this agreement or any
security document(s) or any other agreement with
the Bank and such default continues unremedied
for five (5) business days after the occurrence.
d) The Borrower or Genlyte Xxxxxx Group LLC become
insolvent or bankrupt.
e) Any representation or warranty is inaccurate in
any material respect.
f) The Borrower (i) has an order for relief entered
with respect to it under Canadian or United
States bankruptcy laws or any other law, domestic
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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 suspension of
its general operations under the 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 any of the proceeding described
above is to be instituted against the Borrower
and such appointment continues undischarged or
such proceeding continues undismissed or 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;
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 paragraph (f),
(g) or (h), automatically without notice,
terminate the Facility and/or declare the advance
and all other amount 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.
NON-WAIVER Should there be a breach of or non-compliance with
any term or condition hereof, or should an Event of
Default occur, the Bank may at its option exercise
any rights or remedies it may have hereunder or which
may be available to it and the failure of the Bank to
exercise any such rights or remedies shall not be
deemed to be a waiver of such term or condition and
will not prevent the Bank from exercising such rights
and remedies pursuant to that default or subsequent
defaults at any later time.
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REPRESENTATIONS No representation or warranty or other statement made
by the Bank concerning the credit shall be binding on
the Bank unless made by it in writing as a specific
amendment to this letter.
ADDED COST If the introduction of or any change in any present
or future law, regulation, treaty, official or
unofficial directive, or regulatory requirement,
(whether or not having the force of law) or in the
interpretation or application thereof, relates to:
i) the imposition or exemption of payments due to
the Bank or on reserves or deemed reserves in
respect of the undrawn portion of any loan made
available hereunder; or,
ii) any reserve, special deposit, regulatory or
similar requirement against assets, deposits, or
loans or other acquisition of funds for loans by
the Bank; or,
iii) the amount of capital required or expected to be
maintained by the Bank as a result of the
existence of the advances or the commitment made
hereunder;
and the result of such occurrence is, in the sole
determination of the Bank, to increase the cost of
the Bank or to reduce the income received by the Bank
hereunder, the Borrower shall, on demand by the Bank,
pay to the Bank that amount which the Bank estimates
will compensate it for such additional cost or
reduction in income and the Bank's estimate shall be
conclusive, absent manifest error.
YEAR 2000
REPRESENTATION
1) The Borrower and Genlyte Xxxxxx Group LLC shall use
commercially reasonable efforts to ensure that the
borrower's products, business systems and revenue
generating systems (the "Systems") are Year 2000
compliant (as defined below) as soon as reasonably
practicable. Upon reasonable request by the Bank,
Borrower shall provide documentation relating to or
evidencing such Year 2000 Compliance.
2) The Borrower and Genlyte Xxxxxx Group LLC shall test
the Systems for Year 2000 Compliance and shall
provide the Bank with the opportunity to review test
results at such date or dates to be mutually agreed
by the Bank and Borrower.
3) The Borrower and Genlyte Xxxxxx Group LLC has taken
the reasonable steps to ensure to its satisfaction
that third party suppliers, subcontractors, agents of
Borrower are Year 2000 Compliant.
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"Year 2000 Compliant" or "Year 2000 Compliance" means
the Systems will:
a) process, calculate, accept, maintain, store and
output date and time data accurately and without
delay, interruption or error at all times from, into
and between the Twentieth and twenty-first centuries
and in particular during the years 1999 and 2000,
including the leap year calculations; and
b) function accurately and without interruption at all
times before, on and after January 1, 2000 (including
through February 29, 2000) without any change in
operations associated with the advent of 1999 or the
twenty-first century.
EXPENSES The Borrower shall pay all reasonable fees (including
but not limited to all legal and documentation fees)
and expenses incurred by the Bank or the Borrower in
connection with the preparation and registration of
this Agreement and Bank Security and with the
enforcement of the Bank's rights under this Agreement
or the Bank Security, whether or not any amounts are
advanced under the Agreement. These fees and expenses
shall include, but not be limited, to all outside
counsel expenses and all in-house legal expenses, if
in-house counsel are used.
The Borrower shall pay interest on unpaid amounts due
pursuant to this paragraph at the Prime Rate plus 2%
per annum.
ARRANGEMENT FEE Upon initial drawdown, the Borrower will pay prior to
any drawdown a non-refundable arrangement fee of
$35,000 (35 basis points).
ADMINISTRATION
FEE Upon initial drawdown, the Borrower will pay an
administration fee of $25,000.
ANNUAL REVIEW
FEE For the next year and thereafter, the Borrower will
pay an annual review fee of $10,000 for the Bank to
consider the Borrower's request for an extension of
the Maturity Date. Should the review involve any
material change in the general terms and conditions
of the loan, then this fee could be renegotiated.
INDEMNITY The Borrower shall indemnify and hold harmless the
Bank for all costs, expenses and liabilities in
connection with this credit including the prepayment
of any LIBOR loan prior to the last day of the
interest period applicable to such LIBOR loan.
EVIDENCE OF
INDEBTEDNESS The Bank shall record on its records the amount of
all loans made hereunder, payments made in respect
thereto, and all other amounts becoming due to the
Bank under this Agreement. The Bank's records
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constitute, in the absence of manifest error,
conclusive evidence of the indebtedness of the
Borrower to the Bank pursuant to this Agreement.
PROMISSORY NOTE The Bank may request that loan made by it be
evidenced by a promissory note. In such event, the
Borrower shall prepare, execute and deliver to the
Bank a promissory note payable to the order of the
Bank (or, if requested by the Bank, to its assigns)
and in a form approved by the Bank.
OTHER AGREEMENTS The Borrower acknowledges that it will sign other
Bank documents relating to the credit facility made
available hereunder, including without limitation,
the commercial term loan note, and that the terms and
conditions contained in such other documents shall be
deemed to be incorporated herein by reference and
shall also apply to the credit facility.
ASSIGNMENT The Bank may assign or grant participation in all or
part of this Agreement or in any loan made hereunder
to any Canadian financial institution with the
Borrower's prior consent, which shall not be withheld
unreasonably.
The Borrower may not assign or transfer all or any
part of its rights or obligations under this
Agreement.
LANGUAGE
PREFERENCE This Agreement has been drawn up in the English
language at the request of all parties. (Cet acte a
ete redige en langue anglaise a la demande de toutes
les parties).
SUBMISSION TO
JURISDICTION For purposes of any suit, action or proceeding
involving this Financing 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 Financing 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 or proceeding arising out of or relating to
this Financing 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.
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Nothing contained in this Financing Agreement or any
other document shall affect the Bank's right to serve
legal process in any other manner permitted by law to
bring any action or proceeding against the Borrower
or the Borrower's property in the courts of other
jurisdictions.
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.
SEVERABILITY If any provision of this Financing 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.
We trust you will find this facility helpful in meeting your ongoing financing
requirements. We ask that if you wish to accept this offer of financing please
do so by signing and returning the attached duplicate copy of this letter to the
undersigned. This offer will expire if not accepted in writing and received by
the Bank on or before December 20th, 1999.
Yours truly,
Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx
Relationship Manager Manager, Commercial Credit
TD New York Branch
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TO THE TORONTO-DOMINION BANK:
Genlyte Xxxxxx Group Nova Scotia ULC hereby accepts the foregoing offer this
22nd day of December , 1999.
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Genlyte Xxxxxx Group Nova Scotia ULC
Per: Xxxxx X. Xxxxx - Treasurer
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Per: Xxxxxxx X. Xxxxx - VP & CFO
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