Exhibit 4.1(g)
THIS DOCUMENT IS SUBJECT TO A CONFIDENTIAL TREATMENT REQUEST
PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED
AMENDMENT AGREEMENT NO. 7
TO CREDIT AGREEMENT AND
EQUITY APPRECIATION RIGHTS AGREEMENT
THIS AMENDMENT AGREEMENT (this "Amendment Agreement") is made and
entered into as of this 18th day of February, 2003, by and among INSTEEL
INDUSTRIES, INC., a North Carolina corporation (herein called the "Borrower"),
BANK OF AMERICA, N.A., a national banking association (the "Agent"), as Agent
for the lenders (the "Lenders") party to the Credit Agreement dated January 31,
2000 as amended by the Amendment Agreement No. 1 to Credit Agreement dated
January 12, 2001, by the Supplement to Amendment Agreement No. 1 to the Credit
Agreement effective January 12, 2001, by the Amendment Agreement No. 2 to Credit
Agreement dated May 21, 2001, by Amendment Agreement No. 3 to Credit Agreement
dated August 9, 2001, by Amendment Agreement No. 4 to Credit Agreement dated
November 16, 2001, by Amendment Agreement No. 5 to Credit Agreement dated
January 28, 2002 and by Amendment Agreement No. 6 to Credit Agreement and Equity
Appreciation Rights Agreement dated May 10, 2002 (collectively the "Agreement"),
and the Equity Appreciation Rights Agreement dated May 21, 2001 (the "EAR
Agreement"), among the Borrower, the Agent, and the Lenders, and the UNDERSIGNED
LENDERS.
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into the Agreement pursuant to
which the Lenders have agreed to make loans to the Borrower as evidenced by the
Notes (as defined in the Agreement) and to issue Letters of Credit for the
benefit of the Borrower; and
WHEREAS, as a condition to the making of the loans pursuant to the
Agreement the Lenders have required that the Subsidiaries of the Borrower
guarantee payment of all Obligations of the Borrower arising under the
Agreement; and
WHEREAS, the Borrower and the Lender wish to divide the existing Term
Loan to a term loan A and a term loan B;
WHEREAS, the Borrower has requested that the Lenders further amend the
Agreement and amend the EAR Agreement in the manner described herein; and
WHEREAS, the Lenders are willing to further amend the Agreement and
amend the EAR Agreement subject to the terms and conditions set forth herein;
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NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree
as follows:
1. Definitions. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereinafter
amended and modified. The term "EAR Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the EAR Agreement as
hereinafter amended and modified. Unless the context otherwise requires, other
than paragraph 3, all terms used herein without definition shall have the
definition provided therefor in the Agreement. Unless the context requires
otherwise, all terms used herein in paragraph 3 without definition shall have
the definition provided therefor in the EAR Agreement.
2. Amendment to Agreement. Subject to the conditions set forth
herein, the Agreement is hereby amended, effective as of the date of this
Amendment No. 7 as follows:
(a) Section 1.1 is hereby amended by adding the following
new definitions thereto in the appropriate alphabetical order:
"`Amendment No. 7' means Amendment Agreement No. 7 to
Credit Agreement and Equity Appreciation Rights Agreement
which Amendment No. 7 is dated February 18, 2003."
"`Existing Term Loan' means that certain term loan
advanced to the Borrower on the Closing Date pursuant to the
Agreement in the original principal amount of $80,000,000."
"`Term Loan A' means that portion of the Existing
Term Loan converted to the Term Loan A Facility in accordance
with Section 2.1."
"'Term Loan A Commitment' means, with respect to each
Lender, the Obligation of such Lender to convert a portion of
the Existing Term Loan to Term Loan A in a principal amount
equal to such Lender's Applicable Commitment Percentage of the
Total Term Loan A Commitment as set forth on Exhibit A."
"`Term Loan A Facility' means the facility
described in Section 2.1 providing for the Term Loan A to the
Borrower by the Lenders in the original principal amount of
$28,460,000."
"`Term Loan A Outstandings' means, as of any date
of determination, the aggregate principal amount of the Term
Loan A then outstanding and all interest accrued thereon."
"`Term Loan B' means that portion of the Existing
Term Loan converted to the Term Loan B Facility in accordance
with Section 2.1."
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"'Term Loan B Commitment' means, with respect to each
Lender, the Obligation of such Lender to convert a portion of
the Existing Term Loan to Term Loan B in a principal amount
equal to such Lender's Applicable Commitment Percentage of the
Total Term Loan Commitment as set forth on Exhibit A."
"'Term Loan B Facility' means the facility described
in Section 2.1 providing for a Term Loan B to the Borrower by
the Lenders in the original principal amount of $13,000,000."
"'Term Loan B Outstandings' means, as of any date of
determination, the aggregate principal amount of the Term Loan
B then outstanding and all interest accrued thereon."
"'Total Term Loan A Commitment' means a principal
amount equal to $28,460,000."
"'Total Term Loan B Commitment' means a principal
amount equal to $13,000,000."
(b) The definition of "Applicable Margin" in Section 1.1
is hereby further amended in its entirety so that as amended it shall
read as follows:
"'Applicable Margin' means (a) with respect to the
Revolving Credit Facility, the following percentages per annum
based upon the Consolidated Leverage Ratio for the Applicable
Period as set forth in the most recent compliance certificate
received by the Agent:
Pricing Applicable
Level Consolidated Leverage Ratio Margin
----- --------------------------- -----------
1 < 4.00:1 2.00%
-
2 >4.00:1 but < 4.50:1 2.50%
-
3 >4.50:1 but < 5.00:1 3.00%
-
4 >5.00:1 3.50%
Any increase or decrease in the Applicable
Margin resulting from a change in the
Consolidated Leverage Ratio shall become
effective as of the first Business Day
immediately following the date a compliance
certificate is delivered pursuant to Section
9.1(a); provided, however, that if a
compliance certificate is not delivered when
due in accordance with such Section, then
Pricing Level 4 shall apply as of the first
Business Day after the date on which such
compliance certificate was required to have
been delivered; and
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(b) with respect to the Term Loan Facility, 4%
per annum."
(c) The definition of "Excess EBITDA" in Section 1.1 is
amended so that the chart describing the Applicable Period and Amount
contained in such definition is replaced in its entirety as follows:
"Applicable Period Amount
------------------ ------
Fiscal Year ending $15,081,000
September 27, 2003"
(d) The definition of "Stated Termination Date" in
Section 1.1 is hereby amended in its entirety so that as amended it
shall read as follows:
"`Stated Termination Date' means March 31, 2004."
(e) The definition of "Term Loan" in Section 1.1 is
hereby amended in its entirety so that as amended it shall read as
follows:
"`Term Loan' means, collectively, the aggregate of
the Term Loan A and the Term Loan B made pursuant to the Term Loan
Facility."
(f) The definition of "Term Loan Commitment" in Section
1.1 is hereby amended in its entirety so that as amended it shall read
as follows:
"'Term Loan Commitment' means the aggregate of the
Term Loan A Commitment and the Term Loan B Commitment."
(g) The definition of "Term Loan Facility" in Section 1.1
is hereby amended in its entirety so that as amended it shall read as
follows:
"`Term Loan Facility' means, collectively, the Term
Loan A Facility and the Term Loan B Facility."
(h) The definition of "Term Loan Maturity Date" in
Section 1.1 is hereby amended in its entirety so that as amended it
shall read as follows:
"`Term Loan Maturity Date' means March 31, 2004."
(i) The definition of "Term Loan Outstandings" in Section
1.1 is hereby amended in its entirety to that as amended it shall read
as follows:
"`Term Loan Outstandings' means, as of any date of
determination, the aggregate principal amount of the Term Loan
A Outstandings and the Term Loan B Outstandings."
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(j) Section 2.1(c) is hereby amended in its entirety so
that as amended it shall read as follows:
"(c) Payment of Principal. The principal amount
of the Term Loan shall be repaid in monthly installments on
the dates and in the amounts set forth below:
Date Amount
---- ------
February 28, 2003 $200,000
March 31, 2003 $200,000
April 30, 2003 $300,000
May 31, 2003 $300,000
June 30, 2003 $300,000
July 31, 2003 $400,000
August 31, 2003 $400,000
September 30, 2003 $400,000
October 31, 2003 $150,000
November 30, 2003 $150,000
December 31, 2003 $150,000
January 31, 2004 $250,000
February 29, 2004 $250,000
provided, however, that such payments of principal shall be
applied (i) to Term Loan B until Term Loan B is paid in full,
and (ii) in the event that Term Loan B has been fully repaid,
to Term Loan A until Term Loan A is paid in full, and provided
further, however, that the entire amount of Term Loan
Outstandings shall be due and payable in full on the Term Loan
Termination Date."
(k) Section 2.1 is further amended to add the following
clause (f) to read in its entirety as follows:
"(f) Term Loan Division. Subject to the terms and
conditions of this Agreement, the Existing Term Loan made to
the Borrower pursuant to Sections 2.1(a) and (b) is divided as
of the date of Amendment No. 7 into Term Loan A and Term Loan
B. No additional Advances of the Existing Term Loan or
Advances of Term Loan A or Term Loan B shall be made by any
Lender. All Collateral which secured the Existing Term Loan
shall continue to secure Term Loan A and Term Loan B. The
principal amount of each Segment of the Term Loan A and the
Term Loan B outstanding hereunder from time to time shall bear
interest and the Term Loan A and Term Loan B shall be
repayable as herein provided. No amount of either of the Term
Loan A or the Term Loan B repaid or prepaid by the Borrower
may be reborrowed hereunder, and no subsequent Advances of
Term Loan A or Term Loan B amounts shall be made by any
Lender.
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(l) Section 2.1 is further amended to add the following
clause (g) to read in its entirety as follows:
"(g) Payment of Term Loan Principal.
Notwithstanding anything contained to the contrary herein, any
payment of principal of the Term Loan, other than as expressly
provided in Section 2.1(c), (whether by mandatory or optional
prepayment or otherwise) shall be applied as follows: (i) to
installments of principal of Term Loan B in inverse order of
their maturities (as adjusted to give effect to any prior
payments or prepayments of principal), and (ii) in the event
that Term Loan B has been fully repaid, to installments of
principal of Term Loan A in inverse order of their maturities
(as adjusted to give effect to any prior payments or
prepayments of principal).
(m) Section 4.6 is hereby amended to add the following
clause (f) to read as follows:
"(f) Utilization Fee. Commencing on June 30,
2003, the Borrower agrees to pay to the Agent, for the pro
rata benefit of the Lenders based upon their Applicable
Commitment Percentage, a utilization fee equal to three
quarters percent (.75%) of the Term Loan B Outstandings at the
end of each fiscal quarter. Such payment shall be due within
fifteen (15) days of the end of each fiscal quarter."
(n) Section 9.1 is amended to delete the "and" at the end
of clause (i), to delete the "." at the end of clause (j) and add a ";
and" in replacement thereof, and to add a new subsection (k) to read as
follows:
"(k) as soon as practical and in any event within
15 days after the end of each month deliver to the Agent a
certificate showing the computation of Consolidated EBITDA and
Consolidated Net Worth for the month then ended and
demonstrating compliance with Section 10.1(b)."
(o) Section 10.1(b) is amended in its entirety so that as
amended it shall read as follows:
"(b) Consolidated EBITDA. Permit Consolidated
EBITDA for each of the Applicable Periods ending on the dates
set forth below to be less than the amount set forth opposite
each such date:
APPLICABLE PERIOD AMOUNT
------------------ ------
March 1, 2003 $1,351,000
March 29, 2003 2,253,000
May 3, 2003 3,254,000
May 31, 2003 3,447,000
June 28, 2003 3,603,000
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APPLICABLE PERIOD AMOUNT
------------------ ------
August 2, 2003 3,675,000
August 30, 2003 3,823,000
September 27, 2003 3,749,000
November 1, 2003 4,379,000
November 29, 2003 3,421,000
December 27, 2003 2,630,000
January 31, 2004 1,380,000
February 28, 2004 1,728,000
(p) Section 10.3 is hereby amended in its entirety so
that as amended it shall read as follows:
"10.3 Capital Expenditures. Make or become committed to make
Capital Expenditures which exceed in the aggregate (i)
$1,750,000 for the Fiscal Year 2003 plus, in the event that
Consolidated EBITDA exceeds $13,710,000 for Fiscal Year 2003,
the amount of such excess up to an additional $1,150,000 of
Capital Expenditures for the Fiscal Year 2003; provided,
however, that Capital Expenditures for the Fiscal Year 2003
shall not exceed $2,900,000 in the aggregate, and (ii)
thereafter, $1,750,000 for each Fiscal Year."
3. Amendment to EAR Agreement. Subject to the conditions set
forth herein, the EAR Agreement is hereby amended, effective as of the date of
this Amendment No. 7 as follows:
(a) Section 1.01 is hereby amended by adding the
following new definition thereto in the appropriate alphabetical order:
"Amendment No. 7" means Amendment Agreement No. 7
to Credit Agreement and Equity Appreciation Rights Agreement
which Amendment No. 7 is dated February 18, 2003."
(b) The definition of "Exercise Period" in Section 1.01
is hereby amended in its entirety so that as amended it shall read as
follows:
"Exercise Period" means the period (a) beginning and
ending in the case of Section 2.02(b) and (c), upon payment in
full of all the Loans or (b) beginning on the earlier to occur
of (i) December 31, 2003 or (ii) occurrence of an Event of
Default under the Credit Agreement and ending on December 31,
2005;"
(c) Section 2.02(b) is hereby amended in its entirety so
that as amended it shall read as follows:
"(b) In the event all Obligations (as defined in
the Credit Agreement) have been paid in full by September 30,
2003 and the Facility
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Termination Date (as defined in the Credit Agreement) shall
have occurred by September 30, 2003, the Rights Fee shall be
[*];"
(e) Section 2.02(c) is hereby amended in its entirety so
that as amended it shall read as follows:
"(c) In the event all Obligations (as defined in
the Credit Agreement) have not been paid in full by September
30, 2003 but are paid in full by December 31, 2003 and the
Facility Termination Date (as defined in the Credit Agreement)
shall have occurred by December 31, 2003, the Rights Fee shall
be in a maximum amount of [*] but in no event less than the
greater of:
(i) [*]; or
(ii) [*]; and"
4. Subsidiary Consents. Each Subsidiary of the Borrower that has
delivered a Guaranty to the Agent has joined in the execution of this Amendment
Agreement for the purpose of (i) agreeing to the amendment to the Agreement and
(ii) confirming its guarantee of payment of all the Obligations.
5. Representations and Warranties. The Borrower hereby
represents, warrants and covenants that:
(a) The representations and warranties made by Borrower
in Article VIII of the Agreement are true on and as of the date hereof
except that the financial statements referred to in Section 8.6(a)
shall be those most recently furnished to each Lender pursuant to
Section 9.1;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its Subsidiaries
since December 31, 2002, other than changes in the ordinary course of
business, none of which has been a material adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not and have not been adversely affected in any
substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo,
riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts;
(d) After giving effect to this Amendment Agreement
(including the waivers by the Lenders set forth herein), no event has
occurred and no condition
[*] Confidential portion has been omitted and filed separately with the
Commission.
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exists which, upon the consummation of the transaction contemplated
hereby, constitutes a Default or an Event of Default on the part of the
Borrower under the Agreement, the Notes or any other Loan Document
either immediately or with the lapse of time or the giving of notice,
or both; and
(e) [*].
6. Amendment Fees. Borrower reaffirms its obligations to pay an
amendment fee of [*] with respect to Amendment No. 6 which is due and payable on
April 30, 2003. Borrower further agrees to pay an amendment fee with respect to
this Amendment Agreement of [*] (which is deemed fully earned as of the date
hereof) which is due and payable on January 31, 2004. In the event all
Obligations have been paid in full and the Facility Termination Date has
occurred prior to January 31, 2004, payment of the amendment fee due with
respect to this Amendment Agreement shall be waived.
7. Extension Fee. Borrower agrees to pay to the Agent, for the
pro rata benefit of the Lenders based upon their Applicable Commitment
Percentage, an extension fee equal to one-eighth percent (.125%) of the Total
Outstandings on the date of this Amendment Agreement, which extension fee shall
be fully earned and due and payable on the date hereof.
8. Conditions. This Amendment Agreement shall become effective
upon the Borrower delivering or causing to be delivered to the Agent the
following:
(i) five (5) counterparts of this Amendment Agreement
duly executed by the Borrower, the Agent and the Required Lenders and
consented to by each of the Subsidiaries;
(ii) copy of resolutions adopted by the Board of Directors
of the Borrower and each Guarantor approving this Amendment Agreement
and authorizing its execution certified by the Secretary or Assistant
Secretary to be a true and correct copy duly adopted; and
(iii) all other fees and expenses, including the Agent's
fees, due in connection with this Amendment Agreement.
9. Acknowledgment; Release. The Borrower and the Guarantors
acknowledge that they have no existing defense, counterclaim, offset,
cross-complaint, claim or demand of any kind or nature whatsoever that can be
asserted to reduce or eliminate all or any part of any of their respective
liability to pay the full indebtedness outstanding under the terms of the
Agreement and any other Loan Documents which evidence, guaranty or secure the
Obligations. The Borrower and the Guarantors hereby release and forever
discharge the Agent, the Lenders and all of their officers, directors,
employees, attorneys, consultants and agents from any and all actions, causes of
action, debts, dues, claims, demands, liabilities and
[*] Confidential portion has been omitted and filed separately with the
Commission.
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obligations of every kind and nature, both in law and in equity, known or
unknown, whether matured or unmatured, absolute or contingent.
10. Costs and Expenses. The Borrower agrees to pay all costs and
expenses associated with the preparation, due diligence, administration and
enforcement of all documentation executed in connection with the Amendment
Agreement, including without limitation, the legal fees and out-of-pocket
expenses of counsel to the Agent. The Borrower also agrees to pay the expenses
of the Agent and the Lenders in connection with Collateral review, field audits
and retention of consultants.
11. Entire Agreement. This Amendment Agreement sets forth the
entire understanding and agreement of the parties hereto in relation to the
subject matter hereof and supersedes any prior negotiations and agreements among
the parties relative to such subject matter. No promise, conditions,
representation or warranty, express or implied, not herein set forth shall bind
any party hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing, in
the manner provided in the Agreement, specifying such change, modification,
waiver or cancellation of such terms or conditions, or of any proceeding or
succeeding breach thereof.
12. Full Force and Effect of Agreement. Except as hereby
specifically amended, modified or supplemented, the Agreement and all of the
other Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
INSTEEL INDUSTRIES, INC.
WITNESS:
/s/ Xxxxxx X. Xxxxxxx
------------------------------ By: /s/ Xxxxxxx X. Xxxxxxxxx
Print Name: Xxxxxx X. Xxxxxxx ----------------------------------------
-------------------
Name: Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Title: CFO and Treasurer
-------------------------------------
/s/ Xxxxxxx X. Xxxxx
-----------------------------
Print Name: Xxxxxxx X. Xxxxx
------------------
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GUARANTORS:
INSTEEL WIRE PRODUCTS COMPANY
INTERCONTINENTAL METALS CORPORATION
WITNESS:
/s/ Xxxxxx X. Xxxxxxx
------------------------------ By: /s/ Xxxxxxx X. Xxxxxxxxx
Print Name: Xxxxxx X. Xxxxxxx ----------------------------------------
-------------------
Name: Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Title: CFO and Treasurer
-------------------------------------
/s/ Xxxxxxx X. Xxxxx
-----------------------------
Print Name: Xxxxxxx X. Xxxxx
------------------
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BANK OF AMERICA, N.A., as Agent for the Lenders
By: /s/ Xxxxxxx X. Xxx
--------------------------------------------
Name: Xxxxxxx X. Xxx
------------------------------------------
Title: Senior Vice President
-----------------------------------------
BANC OF AMERICA STRATEGIC SOLUTIONS,
INC., as a Lender
By: /s/ Xxxxxxx X. Xxx
--------------------------------------------
Name: Xxxxxxx X. Xxx
------------------------------------------
Title: Senior Vice President
-----------------------------------------
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BRANCH BANKING AND TRUST COMPANY
By: /s/ Xxxxxxx X.X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X.X. Xxxxxxx
------------------------------------------
Title: Senior Vice President
-----------------------------------------
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WACHOVIA BANK, NATIONAL
ASSOCIATION,
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
------------------------------------------
Title: Director
-----------------------------------------
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PNC BANK, N.A., as successor in interest to
National Bank of Canada, a Canadian chartered bank
By: /s/ Xxx Xxxxx
--------------------------------------------
Name: Xxx Xxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
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