EXHIBIT 10.03
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CREDIT AGREEMENT
(364-Day Facility)
Dated as of April 27, 1995
among
ANTHONY INDUSTRIES, INC.
The Banks herein named
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent
Bank of America
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TABLE OF CONTENTS
Section 1. DEFINITIONS ............................................ 1
1.1 Certain Defined Terms................................... 1
1.2 Other Definitional Provisions........................... 20
Section 2. THE COMMITTED LOANS..................................... 20
2.1 The Loan Commitment..................................... 20
2.2 Loan Accounts........................................... 21
2.3 Procedure for Committed Borrowings...................... 21
2.4 Conversion and Continuation Elections................... 22
2.5 Limitation on Interest Periods.......................... 23
2.6 Reductions and Termination of Loan Commitments.......... 23
2.7 Interest on the Committed Loans......................... 24
2.8 Maturity of Committed Loans............................. 24
2.9 Voluntary Prepayments................................... 24
2.10 Fees.................................................... 25
(a) Commitment Fee..................................... 25
2.11 Other Fees.............................................. 25
2.12 Computation of Fees and Interest........................ 25
2.13 Use of Proceeds of Committed Loans...................... 25
Section 3. LETTERS OF CREDIT....................................... 26
3.1 Letters of Credit....................................... 26
Section 4. THE BID LOANS........................................... 26
4.1 Bid Loan Availability................................... 26
4.2 Procedure for Bid Borrowings............................ 26
4.3 Invitations for Submission of Competitive Bids.......... 27
4.4 Submission of Competitive Bids.......................... 27
4.5 Notice to Company....................................... 28
4.6 Acceptance and Rejection of Competitive Bids............ 28
4.7 Notification and Making of Bid Loans.................... 29
4.8 Notification of Rates................................... 30
4.9 Repayment of Bid Loans.................................. 30
4.10 Interest on Bid Loans................................... 30
4.11 Utilization of Commitments.............................. 30
4.12 Use of Proceeds of Bid Loans............................ 30
Section 5. PAYMENTS IN GENERAL..................................... 31
5.1 Taxes................................................... 31
5.2 Payments by the Company................................. 34
5.3 Apportionment and Application of Payments............... 34
5.4 Payments on Non-Business Days........................... 34
5.5 Illegality.............................................. 35
5.6 Increased Costs and Reduction of Return................. 35
5.7 Funding Losses.......................................... 36
5.8 Inability to Determine Rates............................ 37
5.9 Payments by Banks....................................... 37
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Section 6. CONDITIONS TO EFFECTIVENESS OF AGREEMENT
AND EXTENSIONS OF CREDIT.............................. 38
6.1 Conditions of Initial Loans............................. 38
(a) Credit Agreement................................... 38
(b) Resolutions; Incumbency............................ 38
(c) Articles of Incorporation; By-laws and Good
Standing......................................... 38
(d) Legal Opinions..................................... 39
(e) Payment of Fees.................................... 39
(f) Certificate........................................ 39
(g) Financial Statements............................... 39
(h) Other Documents.................................... 39
6.2 Conditions to all Borrowings............................ 39
(a) Notice of Committed Borrowing...................... 39
(b) Notice of Conversion/Continuation.................. 40
(c) Continuation of Representations and Warranties..... 40
(d) No Existing Default................................ 40
Section 7. REPRESENTATIONS AND WARRANTIES.......................... 40
7.1 Corporate Existence and Power........................... 40
7.2 Corporate Authorization; No Contravention............... 40
7.3 Binding Effect.......................................... 41
7.4 Restricted Subsidiaries................................. 41
7.5 Financial Statements.................................... 41
7.6 Indebtedness............................................ 42
7.7 Disclosure.............................................. 42
7.8 Pending Litigation...................................... 42
7.9 Title to Properties..................................... 42
7.10 Patents and Trademarks.................................. 42
7.11 No Default.............................................. 42
7.12 Governmental Consent.................................... 43
7.13 Taxes................................................... 43
7.14 Use of Proceeds......................................... 43
7.15 ERISA................................................... 44
7.16 Compliance with Law..................................... 44
7.17 Compliance with Environmental Laws...................... 45
7.18 Regulated Entities...................................... 45
7.19 No Burdensome Restrictions.............................. 45
7.20 Labor Relations......................................... 45
7.21 Insurance............................................... 45
7.22 No Restrictions on Restricted Subsidiaries.............. 46
Section 8. AFFIRMATIVE COVENANTS................................... 46
8.1 Financial Statements.................................... 46
(a) Quarterly Statements............................... 46
(b) Annual Statements.................................. 47
(c) Audit Reports...................................... 47
(d) SEC and Other Reports.............................. 47
(e) ERISA Reports...................................... 48
(f) Officer's Certificates............................. 48
(g) Accountant's Certificates.......................... 48
(h) Requested Information.............................. 49
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8.2 Notices................................................. 49
8.3 Corporate Existence, Etc. .............................. 50
8.4 Insurance............................................... 50
8.5 Taxes, Claims for Labor and Materials, Compliance
with Laws............................................. 51
8.6 Maintenance, Etc. ...................................... 51
8.7 Payment of Obligations.................................. 51
8.8 Environmental Laws...................................... 52
8.9 Inspection of Property and Books and Records............ 52
8.10 Incorporation by Reference of Note Agreement Covenants.. 52
Section 9. NEGATIVE COVENANTS...................................... 53
9.1 Limitation on Liens..................................... 53
9.2 Restricted Payments..................................... 55
9.3 Mergers, Consolidations and Sales of Assets............. 55
9.4 Transactions with Affiliates............................ 58
9.5 Termination of Pension Plans............................ 58
9.6 Nature of Business...................................... 58
9.7 Compliance with ERISA................................... 58
9.8 Operating Leases........................................ 59
9.9 Loans and Investments................................... 59
9.10 Acquisitions............................................ 59
9.11 Consolidated Tangible Net Worth......................... 59
9.12 Current Ratio........................................... 59
9.13 Limitations on Indebtedness............................. 60
9.14 Fixed Charges Coverage Ratio............................ 61
9.15 Capital Expenditures.................................... 61
9.16 Change in Business...................................... 61
9.17 Accounting Changes...................................... 61
9.18 No Restrictions on Restricted Subsidiaries.............. 61
Section 10. EVENTS OF DEFAULT....................................... 62
10.1 Events of Default....................................... 62
10.2 Remedies................................................ 64
10.3 Rights Not Exclusive.................................... 64
Section 11. THE AGENT............................................... 64
11.1 Appointment and Authorization........................... 64
11.2 Delegation of Duties.................................... 64
11.3 Liability of Agent...................................... 65
11.4 Reliance by Agent....................................... 65
11.5 Notice of Default....................................... 66
11.6 Credit Decision......................................... 66
11.7 Indemnification......................................... 67
11.8 Agent in Individual Capacity............................ 67
11.9 Successor Agent......................................... 68
Section 12. MISCELLANEOUS........................................... 68
12.1 Amendments and Waivers.................................. 68
12.2 Notices................................................. 69
12.3 No Waiver; Cumulative Remedies.......................... 69
12.4 Costs and Expenses...................................... 69
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12.5 Successors and Assigns.................................. 70
12.6 Assignments, Participations etc. ....................... 70
12.7 Set-off................................................. 72
12.8 Sharing of Payments, Etc. .............................. 72
12.9 General Indemnity....................................... 73
12.10 Notification of Addresses, Lending Offices, Etc. ....... 73
12.11 Counterparts............................................ 73
12.12 Severability............................................ 74
12.13 Governing Law and Jurisdiction.......................... 74
12.14 Entire Agreement........................................ 74
EXHIBITS
A Form of Notice of Committed Borrowing
B Form of Notice of Conversion/Continuation
C Form of Competitive Bid Request
D Form of Competitive Bid
E Form of Notice of Assignment and Acceptance
SCHEDULES
1.1 Commitments
3 Addresses for Domestic and Offshore Lending Offices
and Notices
7.4 Subsidiaries
7.6 Certain Outstanding Indebtedness
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CREDIT AGREEMENT
(364-DAY FACILITY)
THIS CREDIT AGREEMENT (this "Agreement") 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 HEREOF (individually referred to herein as a "Bank" and collectively as the "Banks"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION as the agent for the Banks (the "Agent").
WHEREAS, the Banks have agreed to make available to the Company a revolving credit and bid loan and facility upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
Section 1. DEFINITIONS.
1.1 Certain Defined Terms.
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The following terms used in this Agreement shall have the following meanings:
"Absolute Rate" has the meaning specified in Section 4.4.
-------------
"Absolute Rate Bid Loan" means a Bid Loan that bears interest at a
---------------------- rate determined with reference to the Absolute Rate.
"Acquisition" means any transaction or series of related transactions
----------- for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the capital stock, partnership interests or equity of any Person or otherwise causing any Person to become a Subsidiary of the Company, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary of the Company) provided that the Company or the Company's Subsidiary is the surviving entity; provided, however, that "Acquisition" shall not include
-------- ------- any of the foregoing transactions between the Company
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and any Subsidiary that is a Restricted Subsidiary prior to such transaction or between companies that are Restricted Subsidiaries prior to such transaction.
"Affiliate" means, as to any Person, any other Person which, directly
--------- or indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract or otherwise. Without limitation, any director, executive officer or beneficial owner of 5% or more of the equity of a Person shall for the purposes of this Agreement, be deemed to control such Person.
"Agent" means Bank of America National Trust and Savings Association
----- in its capacity as agent for the Banks hereunder, and any successor agent.
"Agent-Related Persons" has the meaning specified in Section 11.3.
---------------------
"Aggregate Loan Commitment" means the combined Loan Commitments of the
------------------------- Banks.
"Agreement" means this Credit Agreement, as it may hereafter be
--------- amended, supplemented, restated or otherwise modified from time to time.
"Applicable Margin" means, with respect to the Base Rate, 0.00% per
----------------- annum, and with reference to the Offshore Rate, 3/4 of 1% per annum.
"Assignee" has the meaning specified in Section 12.6.
--------
"Assignment and Acceptance" has the meaning specified in Section
------------------------- 12.6(a).
"Availability Period" means the period from the Closing Date to but
------------------- excluding the Termination Date.
"Bank" has the meaning assigned to that term in the introduction to
---- this Agreement.
"Bank Affiliate" means a Person engaged primarily in the business of
-------------- commercial lending and that is a Subsidiary of a Bank or of a Person of which a Bank is a Subsidiary.
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"Bank of America" means Bank of America National Trust and Savings
--------------- Association in its capacity as a Bank.
"Base Rate" means a fluctuating rate per annum which is the higher of
--------- (a) the Federal Funds Rate plus one-half of one percent (1/2%) per annum and (b) the Reference Rate.
"Base Rate Loans" means Committed Loans made by the Banks bearing
--------------- interest at rates determined by reference to the Base Rate.
"Bid Borrowing" means a borrowing hereunder consisting of one or more
------------- Bid Loans made to the Company on the same day by one or more Banks pursuant to Section 4.
"Bid Loans" means the Bid Loans made by the Banks pursuant to Section
--------- 4.
"Borrowing" means a Bid Borrowing or a Committed Borrowing.
---------
"Borrowing Date" means the date a Borrowing is made.
--------------
"Business Day" means any day other than a Saturday, Sunday or other
------------ day on which commercial banks in New York City or San Francisco are authorized or required by law to close and, if the applicable Business Day relates to any Offshore Rate Loan, means such a day on which dealings are carried on in the applicable offshore interbank market.
"Capital Expenditures" means, for any period and with respect to the
-------------------- Company and its Restricted Subsidiaries, the aggregate of all expenditures by the Company and its Restricted Subsidiaries for the acquisition or leasing of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) which should be capitalized under GAAP on a consolidated balance sheet of the Company and its Restricted Subsidiaries. For the purpose of this definition, the purchase price of equipment which is purchased simultaneously with the trade-in of existing equipment owned by the Company and any of its Restricted Subsidiaries or with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount of such purchase price less the credit granted by the seller of such equipment for such equipment being traded in at such time, or the amount of such proceeds, as the case may be.
"Capitalized Lease" means any lease, the obligation for Rentals with
----------------- respect to which is required to be capitalized on a
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consolidated balance sheet of the lessee and its subsidiaries in accordance with GAAP.
"Capitalized Rentals" of any Person shall mean as of the date of any
------------------- determination thereof the amount at which the aggregate Rentals due and to become due under all Capitalized Leases under which such Person is a lessee would be reflected as a liability on a consolidated balance sheet of such Person.
"Cash Flow Available for Fixed Charges" shall mean for any period the
------------------------------------- sum of (i) Consolidated Net Income before extraordinary items, (ii) interest expense, (iii) provisions for taxes based on income, (iv) total payments with respect to Operating Leases and (v) other non-cash items reducing Consolidated Net Income, all determined on a consolidated basis for the Company and its Restricted Subsidiaries in accordance with GAAP.
"CERCLA" has the meaning specified in the definition of "Environmental
------ Laws."
"Closing Date" means the date on which this Agreement becomes
------------ effective and all the conditions in Section 6.1 are satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended, and the
---- regulations promulgated thereunder.
"Committed Borrowing" means a borrowing hereunder consisting of
------------------- Committed Loans made to the Company on the same day by the Banks pursuant to Section 2.
"Committed Loans" means the Committed Loans made by the Banks to the
--------------- Company pursuant to Section 2.
"Commitment" means, with respect to each Bank, the Loan Commitment
---------- (collectively, the "Commitments").
"Company" means Anthony Industries, Inc., a Delaware corporation.
-------
"Competitive Bid" means an offer by a Bank to make a Bid Loan in
--------------- accordance with Section 4.4.
"Competitive Bid Request" means a Competitive Bid Request
----------------------- substantially in the form of Exhibit C annexed hereto.
"Consolidated Current Assets" means, as of any date of determination,
--------------------------- all amounts which would, in accordance with GAAP,
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be included under current assets on a consolidated balance sheet of the Company and its Restricted Subsidiaries.
"Consolidated Current Liabilities" means, as of any date of
-------------------------------- determination, all amounts which would, in accordance with GAAP, be included under current liabilities on a consolidated balance sheet of the Company and its Restricted Subsidiaries.
"Consolidated Funded Debt" means all Funded Debt of the Company and
------------------------ its Restricted Subsidiaries, determined on a consolidated basis eliminating intercompany items.
"Consolidated Net Income" for any period shall mean the net income of
----------------------- the Company and its Restricted Subsidiaries for such period, determined in accordance with GAAP, but excluding in any event:
(a) any extraordinary gains or losses as defined in APBO Nos. 11, 16
and 30 and FASB Statement No. 4;
(b) net earnings and losses of any Restricted Subsidiary accrued prior
to the date it became a Restricted Subsidiary;
(c) net earnings and losses of any corporation (other than a
Restricted Subsidiary), substantially all the assets of which have been
acquired in any manner by the Company or any Restricted Subsidiary,
realized by such corporation prior to the date of such acquisition;
(d) net earnings and losses of any corporation (other than a
Restricted Subsidiary) with which the Company or a Restricted Subsidiary
shall have consolidated or which shall have merged into or with the Company
or a Restricted Subsidiary, realized by such corporation prior to the date
of such consolidation or merger;
(e) net earnings of any business entity (other than a Restricted
Subsidiary) in which the Company or any Restricted Subsidiary has an
ownership interest unless such net earnings shall have actually been
received or are receivable by the Company or such Restricted Subsidiary in
the form of cash distributions;
(f) any portion of the net earnings of any Restricted Subsidiary which
for any reason is unavailable for payment of dividends to the Company or
any other Restricted Subsidiary except to the extent applied to the
repayment of
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Indebtedness of such Restricted Subsidiary to the Company or any other
Restricted Subsidiary;
(g) earnings or amortization resulting from any reappraisal,
revaluation or write-up of assets;
(h) any deferred or other credit or amortization thereof representing
any excess of the equity in any Restricted Subsidiary at the date of
acquisition thereof over the amount invested in such Restricted Subsidiary;
and
(i) any gain arising from the acquisition of any securities of the
Company or any Restricted Subsidiary.
"Consolidated Net Worth" shall mean as of the date of any
---------------------- determination thereof the total consolidated assets of the Company and its Restricted Subsidiaries less the total consolidated liabilities of the Company and its Restricted Subsidiaries determined in accordance with GAAP.
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