Exhibit 10.04
ANTHONY INDUSTRIES, INC.
FIRST AMENDMENT
Dated as of
May 1, 1996
Re: Note Agreements dated as of October 15, 1992
and
$40,000,000 8.39% Senior Notes
Due November 30, 2004
To the Holders Named in Schedule 1
Gentlemen:
Reference is made to those separate Note Agreements, each dated as of
October 15, 1992 (collectively referred to herein as the "Note Agreements"),
pursuant to which Anthony Industries, Inc., a Delaware corporation (the
"Company"), issued $40,000,000 aggregate principal amount of its 8.39% Senior
Notes due November 30, 2004. You and the other Institutional Holders named in
Schedule I are hereinafter sometimes referred to as the "Holders". Capitalized
terms used herein and not otherwise defined shall have the meanings given
thereto in the Note Agreements.
The Company requests the amendment of certain provisions of the Note
Agreements to read as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
sufficient consideration, the Company agrees with you as follows:
SECTION 1. AMENDMENTS
Section 1.1. Amendment of Section 2.1. Section 2.1 of each of the Note
Agreements is hereby amended by inserting the following after the last sentence
contained therein:"
"In the event of any purchase or other acquisition by the Company of less
than all of the Notes, the amount of the payment required at maturity and
each prepayment required to be made pursuant to this (S)2.1 shall be
reduced in the proportion that the principal amount of such purchase or
other acquisition bears to the unpaid principal amount of the Notes
immediately prior to such purchase or other acquisition (after giving
effect to any prepayment made pursuant to this (S)2.1 on the date of such
purchase or other acquisition.)"
Section 1.2. Amendment of Section 5.11. Section 5.11 of each of the Note
Agreements is hereby amended as follows:
(a) Section 5.11(a) is hereby amended by deleting "(d)" where it appears
therein and inserting "(e)" in lieu thereof.
(b) Section 5.11 is hereby amended by inserting the following after
paragraph (c) thereof:"
"(d) Neither the Company nor any Restricted Subsidiary will sell,
transfer or otherwise dispose of any receivables other than any sale, lease
or other disposition of receivables pursuant
to the Accounts Receivable Financing Facility, provided that at all times
the Accounts Receivable Financing Facility has a Deemed Principal Amount
equal to or less than $50,000,000."
(c) Section 5.11 (d) is hereby amended by deleting Section 5.11(d) in its
entirety and inserting in lieu thereof the following: "
"(e) As used in this (S)5.11, a sale, lease or other disposition of
assets shall be deemed to be a 'of the assets of the Company and its
Restricted Subsidiaries if the book value of such assets, when added to the
book value of all other assets sold, leased or otherwise disposed of by the
Company and its Restricted Subsidiaries (other than in the ordinary course
of business) during the 12-month period ending with the date of such sale,
lease or other disposition, exceeds 15% of Consolidated Total Assets,
determined as of the end of the immediately preceding fiscal year. For
purposes of making any determination of 'substantial part', (I) the book
value in excess of $30,000,000 of accounts receivables sold, leased or
disposed of pursuant to the Accounts Receivable Financing Facility shall be
excluded from any determination of 'substantial part' and (ii) a sale,
lease or other disposition of assets shall be excluded from any computation
thereof if the net proceeds of such sale, lease or other disposition are
held in an account which is segregated from all other accounts and funds of
the Company and identified as holding such proceeds, provided that such
proceeds are applied within one year after such sale, lease or other
disposition to either (A) purchase other fixed or capital assets useful be
used in the business of the Company or a Restricted Subsidiary, or (B)
prepay Funded Debt of the Company or any Restricted Subsidiary."
Section 1.3 Amendment of Section 5.16. Section 5.16 of each of the Note
Agreements is hereby amended as follows:
(a) Clause (f) of Section 5.16 is hereby amended by inserting "and of
(S)5.17 after (S)5.15" where it appears therein;
(b) Clause (g) of Section 5.16 is hereby amended by deleting "and" where
it appears at the end of said clause (g);
(c) Section 5.16 is hereby amended by inserting the following after clause
(g):
"(h) Deemed Principal Amount and Deemed Interest Charges. As soon as
available and in any event within 50 days after the end of each quarterly
fiscal period of each fiscal year, a report of the Deemed Principal Amount
and Deemed Interest Charges as of the last day of each month occurring
during such quarterly fiscal period in reasonable detail and certified as
complete and correct by an authorized financial officer of the Company;
and"
(d) Clause (h) of Section 5.16 is hereby amended by deleting "(h)" where
it appears in the first line thereof and inserting in lieu thereof "(i)".
Section 1.4. Amendment of Section 5. Section 5 of each of the Note
Agreements is hereby amended in its entirety by inserting the following at the
end thereof:
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"Section 5.17. Consolidated Adjusted Net Worth: The Company will at all
times keep and maintain Consolidated Adjusted Net Worth at an amount not
less than (I) for the fiscal quarter of the Company ending June 30, 1996,
$125,000,000 and (ii) for each fiscal quarter thereafter the sum of (x)
Consolidated Adjusted Net worth required to be maintained during the
immediately preceding fiscal quarter, plus (y) 50% of Consolidated Net
Income for such immediately preceding fiscal quarter (but without deduction
in the event of a loss), plus (z) 75% of Net Issuance Proceeds for such
immediately preceding fiscal quarter."
Section 1.5. Amendment of Section 8.1. Section 8.1 of each of the Note
Agreements is hereby amended as follows:
(a) The definition of "Fixed Charges" is hereby deleted in its entirety and
the following is inserted in lieu thereof: "
"Fixed Charges" for any period shall mean on a consolidated
basis the sum of (I) all Rentals (other than Rentals on Capitalized Leases)
payable during such period by the Company and its Restricted Subsidiaries,
(ii) all Interest Charges on all Indebtedness (including the interest
component of Rentals on Capitalized Leases) of the Company and its
Restricted Subsidiaries and (iii) all Deemed Interest Charges of the
Company and its Restricted Subsidiaries."
(b) The definition of "Funded Debt" is hereby deleted in its entirety and the
following is inserted in lieu thereof: "'
"'Funded Debt' of any Person shall mean (i) all Indebtedness of
such Person for borrowed money or which has been incurred in connection
with the acquisition of assets in each case having a final maturity of one
or more than one year from the date or origin thereof (or which is
renewable or extendible at the option of the obligor for a period or
periods more than one year from the date of origin), excluding all payments
in respect thereof that are required to be made within one year form the
date of any determination of Funded Debt, (ii) all Capitalized Rentals of
such Person, excluding all payments in respect thereof required to be made
within one year from the date of any determination of Funded Debt, (iii)
the Deemed Principal Amount and (iv) all Guaranties by such Person of
Funded Debt of others."
(c) The following definitions are hereby incorporated into Section 8.1 in their
correct alphabetical order.
"'Accounts Receivable Financing Facility' shall mean the
facility or facilities, as amended, extended or renewed from time to time,
providing for the sale, encumbrance or other disposition to a Person or
Persons other than the Company or a Restricted Subsidiary, at any time or
from time to time, of all or a portion of the accounts receivable of the
Company or its Restricted Subsidiaries, whether now existing or hereafter
created."
"'Consolidated Adjusted Net Worth' shall mean as of any date of
any determination thereof Consolidated Net worth less (I) all equity
investments in Persons which are not Restricted Subsidiaries and (ii)
Consolidated Intangible Assets of the Company and its Restricted
Subsidiaries as of such date.
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"'Consolidated Intangible Assets' shall mean as of any date of
any determination thereof the total amount (to the extent reflected in
determining Consolidated Net Worth) of all unamortized debt discount and
expense, unamortized deferred charges (other than deferred employee benefit
liabilities), goodwill, patents, trademarks, service marks, trade names,
copyrights, organization or development expense and such other items as are
properly classified as 'intangible assets' in accordance with GAAP."
"'Deemed Interest Charges' shall mean during any period of time
with respect to the Accounts Receivable Financing Facility, the interest,
fees, yield or other expenses or charges which accrue or, if GAAP were to
apply, would be deemed to accrue during such period of time with respect to
the Deemed Principal Amount thereof."
"'Deemed Principal Amount' shall mean at any time with respect
to the Accounts Receivable Financing Facility, the aggregate dollar amount
of the interests in accounts receivable of the Company or its Restricted
Subsidiaries at such time sold, encumbered, or otherwise disposed
thereunder to a Person or Persons other than the Company or a Restricted
Subsidiary."
"'Net Issuance Proceeds' shall mean, in respect of any issuance
of equity by the Company or any Restricted Subsidiary, the cash proceeds
and non-cash proceeds received or receivable by the Company or such
Restricted Subsidiary in connection therewith, net of reasonable costs and
expenses and underwriting discounts and commissions paid or incurred in
connection therewith in favor of any Person or any Affiliate of the
Company."
SECTION 2. MISCELLANEOUS.
Section 2.1. Counterparts. This First Amendment may be executed in any
number of counterparts, each executed counterpart constituting an original, but
all together only one First Amendment.
Section 2.2. Headings. The headings of the sections of this First Amendment
are for purposes of convenience only and shall not be construed to affect the
meaning or constriction of any of the provisions hereof.
Section 2.3. Governing Law. The First Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
Section 2.4. References to Note Agreements. Any and all notices, requests,
certificates and other instruments executed and delivered concurrently with or
after the execution of the First Amendment may refer to the Note Agreements
without making specific reference to this First Amendment , but nevertheless all
such references shall be deemed to include this First Amendment unless the
context shall otherwise require.
Section 2.5. Ratification. Except to the extent hereby modified or amended,
the Note Agreements are in all respects hereby ratified, confirmed and approved
by the parties hereto.
Section 2.6. Fees and Expenses. All fees and expenses relating to the
subject matter of this First Amendment, including without limitation, all fees
and expenses of special counsel to the Holders, shall be paid by the Company
Section 2.7. Representation by the Company. The Company hereby represents
to each of you that on the date hereof and after giving effect to this First
amendment, no Default or Event of Default (as such terms are defined in the Note
Agreements) has occurred and is continuing.
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Section 2.8. Effective Date of First Amendment. This First Amendment shall
be effective from and after the date on which the Holders of at least 66-2/3% in
aggregate principal amount of the Notes shall have executed this First
Amendment.
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Please signify your consent to the amendment of the Note Agreement between
you and the Company by signing and returning this First Amendment.
ANTHONY INDUSTRIES, INC.
By
---------------------------------
Its Senior Vice President-Finance
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Accepted as of the date first above written.
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By
-----------------------------------
It's
By
------------------------------------
Its
Holder of $20,000,000 in aggregate
principal amount of the Notes
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Accepted as of the date first above written.
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By
------------------------------
Its Managing Director
Holder of $10,000,000 in aggregate
principal amount of the notes
8
Accepted as of the date first above written.
LIFE INVESTORS INSURANCE
COMPANY OF AMERICA
By
--------------------------------
Holder of $3,000,000 in aggregate principal
amount of the Notes
9
Accepted as of the date first above written.
MONUMENTAL LIFE INSURANCE COMPANY
By
----------------------------------
Holder of $7,000,000 in aggregate principal
amount of the Notes
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SCHEDULE 1
Principal Mutual Life Insurance Company
711 High Street
Des Moines, Iowa 50392-0800
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, Massachusetts 01111
Life Investors Insurance Company of America
c/o AEGON USA Investment Management, Inc.
4333 Edgewood Road, N.E.
Cedar Rapids, Iowa 52499
Monumental Life Insurance Company
c/o AEGON USA Investments Management, Inc.
4333 Edgewood Road, N.E.
Cedar Rapids, Iowa 52499
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