EXHIBIT 10.02
THIRD AMENDMENT TO CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment") is dated
as of April 27, 1995 and is entered into by and among Anthony Industries, Inc.,
a Delaware corporation (the "Company"), the financial institutions listed on the
signature pages hereto (the "Banks"), and Bank of America National Trust and
Savings Association, as the agent for the Banks (the "Agent") and amends that
certain Credit Agreement dated as of June 28, 1993 among the Company, the Banks
and the Agent, as amended by a First Amendment to Credit Agreement dated as of
July 22, 1994 and a Second Amendment to Credit Agreement dated as of April 21,
1995 (as so amended, the "Agreement").
RECITAL
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The Company has requested the Banks and the Agent to provide for another
credit facility and the parties hereto wish to permit such facility under the
Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as in the
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Agreement unless otherwise defined herein. All references to the Agreement
shall mean the Agreement as hereby amended.
2. Amendments to Agreement.
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2.1 Section 9.13 of the Agreement is amended to read in its entirety as
follows:
"9.13 Limitations on Indebtedness. (a) The Company will not, nor will
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it permit any Restricted Subsidiary to, create, assume, suffer to exist or incur
or in any manner become liable in respect of any Indebtedness for borrowed money
or other Indebtedness described in clauses (i) through (v) of the definition
thereof, except:
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(1) Obligations hereunder, Indebtedness under that Credit Agreement
(364-Day Facility), dated as of April 27, 1995, among the Company, the
Banks and the Agent, as amended from time to time, and Indebtedness under
the Note Agreement;
(2) Indebtedness of the Company and its Restricted Subsidiaries
outstanding as of the date of this Agreement and reflected on the
consolidated balance sheet of the Company and its Restricted Subsidiaries
reflected in Schedule 7.6 hereto or available under the agreement or
facility pursuant to which such Indebtedness is incurred described in
Schedule 7.6 hereto, and any renewals, extensions, refinancings or
replacements of such Indebtedness so long as (i) the principal amount
thereof (or available under the agreement or facility pursuant to which
such Indebtedness is incurred) shall not exceed the amount thereof
outstanding or available on the Closing Date (ii) such renewal, extension,
refinancing or replacement shall have terms which are not materially more
adverse to the Company or its Restricted Subsidiaries, as the case may be,
as the original Indebtedness; provided that outstanding Current Debt under
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this clause (2) shall not in any event exceed $16,000,000 in the aggregate
at any one time;
(3) Funded Debt of the Company and its Restricted Subsidiaries;
provided, however, that:
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(i) Outstanding Consolidated Funded Debt shall not exceed 55% of
Total Capitalization at any time, and
(ii) the aggregate amount of all Priority Debt shall not exceed
10% of Consolidated Net Worth at any time;
(4) Indebtedness of a Restricted Subsidiary to the Company or to a
wholly-owned Restricted Subsidiary;
(5) Guaranties of the Company and Restricted Subsidiaries which are
limited in amount to a stated maximum dollar exposure; and
(6) Other Indebtedness of the Company and the Restricted Subsidiaries
for borrowed money or other Indebtedness described in clauses (i) through
(vi) of the definition thereof not otherwise permitted by clauses (1)
through (5) above; provided, however, that, commencing June 1, 1995 and at
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all times thereafter, Indebtedness permitted by this clause (6) shall not
exceed $15,000,000 in aggregate principal amount at any one time;
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provided, however, that all Indebtedness permitted by this Section 9.13(a)
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shall not exceed $180,000,000 in aggregate principal amount at any one time.
(b) Any corporation which becomes a Restricted Subsidiary after the
date hereof shall for all purposes of this Section 9.13 be deemed to have
created, assumed or incurred at the time it becomes a Restricted Subsidiary all
Funded Debt of such corporation existing immediately after it becomes a
Restricted Subsidiary."
3. Representations and Warranties. The Company represents and warrants
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to Banks and Agent that, on and as of the date hereof, and after giving effect
to this Third Amendment:
3.1 Authorization. The execution, delivery and performance of this
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Third Amendment have been duly authorized by all necessary corporate action by
the Company and this Third Amendment has been duly executed and delivered by the
Company.
3.2 Binding Obligation. This Third Amendment is the legal, valid and
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binding obligation of Company, enforceable against the Company in accordance
with its terms.
3.3 No Legal Obstacle to Amendment. The execution, delivery and
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performance of this Third Amendment will not (a) contravene the terms of the
Company's certificate of incorporation, by-laws or other organization document;
(b) conflict with or result in any breach or contravention of the provisions of
any contract to which the Company is a party, or the violation of any law,
judgment, decree or governmental order, rule or regulation applicable to
Company, or result in the creation under any agreement or instrument of any
security interest, lien, charge, or encumbrance upon any of the assets of the
Company. No approval or authorization of any governmental authority is required
to permit the execution, delivery or performance by the Company of this Third
Amendment, or the transactions contemplated hereby.
3.4 Incorporation of Certain Representations. The representations
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and warranties of the Company set forth in Section 7 of the Agreement are true
and correct in all respects on and as of the date hereof as though made on and
as of the date hereof, except as to such representations made as of an earlier
specified date.
3.5 Default. No Default or Event of Default under the Agreement has
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occurred and is continuing.
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4. Conditions, Effectiveness. The effectiveness of this Third Amendment
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shall be subject to the compliance by the Company with its agreements herein
contained, and to the delivery of the following to the Agent in form and
substance satisfactory to the Agent:
4.1 Corporate Resolutions. A copy of a resolution or resolutions
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passed by the Board of Directors of the Company, certified by the Secretary or
an Assistant Secretary of the Company as being in full force and effect on the
effective date of this Third Amendment, authorizing the amendments to the
Agreement herein provided for and the execution, delivery and performance of
this Third Amendment and any note or other instrument or agreement required
hereunder.
4.2 Authorized Signatories. A certificate, signed by the Secretary
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or an Assistant Secretary of the Company dated the date of this Third Amendment,
as to the incumbency of the person or persons authorized to execute and deliver
this Third Amendment and any instrument or agreement required hereunder on
behalf of the Company.
4.3 Other Evidence. Such other evidence with respect to the Company
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or any other person as the Agent or any Bank may reasonably request in
connection with this Third Amendment and the compliance with the conditions set
forth herein.
5. Miscellaneous.
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5.1 Effectiveness of Agreement. Except as hereby expressly amended,
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the Agreement and each other Loan Document shall each remain in full force and
effect, and are hereby ratified and confirmed in all respects on and as of the
date hereof.
5.2 Waivers. This Third Amendment is specific in time and in intent
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and does not constitute, nor should it be construed as, a waiver of any other
right, power or privilege under the Loan Documents, or under any agreement,
contract, indenture, document or instrument mentioned in the Loan Documents; nor
does it preclude any exercise thereof or the exercise of any other right, power
or privilege, nor shall any future waiver of any right, power, privilege or
default hereunder, or under any agreement, contract, indenture, document or
instrument mentioned in the Loan Documents, constitute a waiver of any other
default of the same or of any other term or provision.
5.3 Counterparts. This Third Amendment may be executed in any number
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of counterparts and all of such
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counterparts taken together shall be deemed to constitute one and the same
instrument. This Third Amendment shall not become effective until the Company,
the Banks and the Agent shall have signed a copy hereof, whether the same or
counterparts, and the same shall have been delivered to the Agent.
5.4 Jurisdiction. This Third Amendment shall be governed by and
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construed under the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be duly executed and delivered as of the date first written above.
ANTHONY INDUSTRIES, INC
By: ________________________
Title: _____________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: _________________________
Leandro J. Balidoy
Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
By: _________________________
Mark Milner
Managing Director
By: _________________________
Sabur Moini
Assistant Vice President
(Signatures continue)
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CITICORP USA, INC.
By: __________________________
Title:________________________
NATIONSBANK OF TEXAS, N.A.
By: __________________________
Title:________________________
SEATTLE FIRST NATIONAL BANK
By: __________________________
Title:________________________
WACHOVIA BANK
By: __________________________
Title:________________________
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