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EXHIBIT 4.45
FOURTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment"), dated this sixth day of January, 1998, is made by and between
INSTEEL INDUSTRIES, INC., a North Carolina corporation (the "Borrower"); and
FIRST UNION NATIONAL BANK, a national banking association (the "Bank"), to the
Amended and Restated Credit Agreement, dated January 26, 1996, as amended by
First Amendment thereto, dated April 11, 1997, by Second Amendment thereto,
dated as of April 30, 1997, and by Third Amendment thereto, dated November 17,
1997 (the Amended and Restated Credit Agreement, as amended, modified, restated
or supplemented from time to time, being hereinafter referred to as the "Credit
Agreement"). All capitalized terms used herein without definition shall have
the meanings ascribed to such terms in the Credit Agreement.
RECITALS
A. Pursuant to the Credit Agreement, the Bank has made available to the
Borrower a Revolving Line of Credit in the amount of $50,000,000 and a Letter
of Credit Facility in the amount of $10,000,000.
B. The Borrower has requested that the Bank (i) increase the Revolving
Line of Credit Commitment for a limited period of time from $50,000,000 to
$55,000,000, (ii) decrease the Letter of Credit Facility Commitment for a
limited period of time from $10,000,000 to $5,000,000, (iii) consent to a
change of Borrower's fiscal year, (iv) amend in certain respects the ratio for
the calculation for the marginal rate of interest and marginal facility fee to
be paid by Borrower, and (v) amend certain financial and other covenants.
C. The Bank has agreed to such requests and the Borrower and the Bank
have therefore agreed to amend the Credit Agreement as set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the Borrower and the Bank hereby agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
The Credit Agreement is hereby amended as follows:
1.1 DEFINED TERMS. Section 1.1 of the Credit Agreement is amended by
deleting the definitions of "Applicable Margin", "Fiscal Year", "Letter of
Credit Facility Commitment" and
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EXHIBIT 4.45
"Revolving Line of Credit Commitment" in their entirety and by substituting in
lieu thereof the following:
"Applicable Margin" shall mean, at any date of determination, the
marginal rate or interest which shall be paid by Borrower in addition
to the LIBOR Rate and the marginal facility fee rate to be paid which
coincides to the Funded Debt to EBITDA Ratio (calculated for each
Fiscal Quarter with respect to the Fiscal Quarter then ended and the
immediately preceding three (3) Fiscal Quarters), which rates shall
be determined at the end of each Interest Period and, if appropriate,
the Applicable Margin shall be reduced or increased for the next
Interest Period according to the following schedule:
Funded Debt to Applicable Margin
EBITDA Ratio For LIBOR Rate Loan Facility Fee
------------- ------------------- ------------
Equal to or less than 0.375% 0.175%
1.5 to 1.0
Greater than 1.5 to 0.500% 0.175%
1.0 but less than or
equal to 2.0 to 1.0
Greater than 2.0 to 0.625% 0.200%
1.0 but less than or
equal to 2.5 to 1.0
Greater than 2.5 to 0.750% 0.200%
1.0 but less than or
equal to 3.0 to 1.0
Greater than 3.0 to 0.875% 0.225%
1.0 but less than or
equal to 3.25 to 1.0
Greater than 3.25 to 1.000% 0.250%
1.0 but less than or
equal to 3.5 to 1.0
Greater than 3.5 to 3.000% 0.500%
1.0
During the period from October 1, 1997 through March 31, 1998, if the
Funded Debt to EBITDA Ratio is greater than 3.5 to 1.0 but less than or equal
to 4.75 to 1.0, then the Applicable Margin for LIBOR Rate Loans and the facility
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EXHIBIT 4.45
fee shall be 1.0% and 0.25%, respectively. If the Funded Debt to EBITDA
Ratio is greater than 4.75 to 1.0 on or prior to March 31, 1998 or if the
Funded Debt to EBITDA Ratio is greater than 3.5 to 1.0 after March 31,
1998, then (i) the Default Rate shall be applicable to the Obligations and
(ii) the facility fee due and payable pursuant to Section 4.6 of this
Agreement shall be computed at the rate of 0.5%.
"Fiscal Year" shall mean the 52/53 week period of Borrower ending on
the Saturday closest to September 30 of each calendar year and commencing
on the next calendar day following such date.
"Letter of Credit Facility Commitment" shall mean $10,000,000 during
the period from the effective date of the First Amendment to this Agreement
through December 31, 1997; $5,000,000 during the period from January 1,
1998 through March 31, 1998; and $10,000,000 on April 1, 1998 and at all
times thereafter.
"Revolving Line of Credit Commitment" shall mean $50,000,000 during
the period from the effective date of the First Amendment to this Agreement
through December 31, 1997; $55,000,000 during the period from January 1,
1998 through March 31, 1998; and $50,000,000 on April 1, 1998 and at all
times thereafter.
1.2 Negative Covenants. Section 8.16, Funded Debt to EBITDA, is amended
in its entirety to read as follows:
"8.16 Funded Debt to EBITDA Ratio. Permit the Funded Debt to EBITDA
Ratio to be greater than (a) 3.75 to 1.0 for the four (4) Fiscal Quarters
ending September 30, 1997, (b) 4.75 to 1.0 for the four (4) Fiscal Quarters
ended December 27, 1997 and March 28, 1998, and (b) 3.5 to 1.0 at the end
of any Fiscal Quarter thereafter for the four (4) Fiscal Quarters then
ended."
1.3 Exhibits. Exhibit A to the Credit Agreement is hereby amended by
deleting such exhibit in its entirety and by replacing it with the Exhibit A
attached to this Amendment.
ARTICLE II
CONSENT
2.1 Consent. The Borrower has requested that the Bank consent to the
change of Borrower's Fiscal year from September 30 to the 52/53 week period
ending on the Saturday closest to September 30 of each calendar year. The Bank
hereby grants its consent to such change and agrees that such change shall not
constitute an Event of Default under the Credit Agreement or any of the other
Loan Documents.
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EXHIBIT 4.45
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Bank that:
3.1 Acknowledgment of Obligations. As of the close of business on January
5, 1998, the aggregate principal amount of Revolving Loans owing by the Borrower
was in the sum of $49,999,999.99, the aggregate amount of Letter of Credit
Obligations owing by the Borrower was in the sum of $3,560,621.95, and the
aggregate amount of Bankers' Acceptance Obligations owing by the Borrower was in
the sum of $-0-, and that all such Obligations are due and owing by the Borrower
to the Bank without any defense, deduction, offset or counterclaim of any
nature.
3.2 Compliance With the Credit Agreement. As of the execution of this
Amendment, the Borrower is in compliance with all of the terms and provisions
set forth in the Loan Documents to be observed or performed by the Borrower,
except where the failure of the Borrower to comply has been waived in writing by
the Bank.
3.3 Representations in Credit Agreement. The representations and
warranties of the Borrower set forth in the Credit Agreement are true and
correct in all material respects.
3.4 No Event of Default. No Default or Event of Default exists.
ARTICLE IV
MODIFICATION OF LOAN DOCUMENTS
4.1 Loan Documents. Any individual or collective reference to any of the
Loan Documents shall hereafter mean such Loan Document as amended by this
Amendment, and as further amended, restated, supplemented or modified from
time to time, including, without limitation, all references to the Credit
Agreement, which shall mean the Credit Agreement as amended hereby and as
further amended from time to time.
ARTICLE V
GENERAL
5.1 Full Force and Effect. Except as expressly amended hereby, the
Credit Agreement and the other Loan Documents shall continue in full force and
effect in accordance with provisions thereof. As used in the Credit Agreement
and the other Loan Documents, "hereinafter", "hereto", or words of similar
import, shall mean the Credit Agreement or the other Loan Documents, as the
case may be, as amended by this Amendment.
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EXHIBIT 4.45
5.2 Applicable Law. This Amendment shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of North
Carolina.
5.3 Headings. The headings of this Amendment are for the purpose of
reference only and shall not effect the construction of this Amendment.
5.4 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE BORROWER AND THE BANK EACH WAIVE THE RIGHT TO A JURY TRIAL IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE CREDIT
AGREEMENT OR THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered under seal by their duly authorized officers to be
effective as of the date first above written.
ATTEST: INSTEEL INDUSTRIES, INC.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------- --------------------------
Assistant Secretary Title: Chief Financial Officer
and Treasurer
[CORPORATE SEAL]
FIRST UNION NATIONAL BANK
[SEAL] By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Title: Vice President
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EXHIBIT 4.45
EXHIBIT A TO
CREDIT AGREEMENT
THIRD AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$55,000,000 Greensboro, North Carolina
January __, 1998
FOR VALUE RECEIVED, the undersigned INSTEEL INDUSTRIES, INC., a North
Carolina corporation ("Borrower"), promises to pay to FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, a national banking association ("Bank"), or order, at the
principal office of the Bank in Greensboro, North Carolina, or at such other
place as the Bank may from time to time designate in writing, the principal sum
of Fifty-Five Million Dollars ($55,000,000), or, if less, the unpaid balance of
all Revolving Loans made by the Bank to the Borrower under the Revolving Line
of Credit extended by the Bank to the Borrower pursuant to the Credit
Agreement, together with interest on the unpaid principal amount of this Note
at the rates provided in the Credit Agreement.
This Note amends and restates in its entirety that certain $50,000,000
Second Amended and Restated Revolving Credit Note, dated April 11, 1997,
executed by Borrower to the order of Bank and is the Revolving Credit Note
issued to evidence Revolving Loans made by the Bank to the Borrower under the
Revolving Line of Credit pursuant to Section 2.1 of the Credit Agreement, dated
June 14, 1995, between the Borrower and the Bank, as the same may from time to
time be amended, modified, restated or supplemented ("Credit Agreement"), and
is entitled to the benefits of, and the remedies provided in, the Credit
Agreement. All of the terms, conditions and covenants of the Credit Agreement
are expressly made a part of this Note, by reference in the same manner and
with the same effect as if set forth herein. Reference is made to the Credit
Agreement for provisions for the maturity, payment, prepayment and acceleration
of this Note. All capitalized terms used in this Note without definition shall
have the meanings ascribed to such terms in the Credit Agreement.
The Borrower, for itself and its successors and assigns, expressly waives
presentment for payment, demand, protest and notice of demand, notice of
dishonor and notice of nonpayment and all other notices.
This Note shall be governed by, construed and enforced in accordance with
the internal laws, and not the laws of conflicts, of the State of North
Carolina.
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EXHIBIT 4.45
In the event that this Note shall at any time after maturity be collected
by or through an attorney-at-law, the Borrower agrees to pay, in addition to
the entire unpaid principal balance and interest due hereunder, all collection
costs, including reasonable attorneys' fees, incurred by the Bank in collecting
the indebtedness due hereunder, computed on the basis of usual and customary
rates and not on the basis of a fixed percentage of the indebtedness due
hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed under
seal by its duly authorized corporate officers and its corporate seal to be
hereunto affixed on the day and year first above written.
ATTEST: INSTEEL INDUSTRIES, INC.
By:
------------------------------------ -------------------------------------
Secretary Title:
--------------------------- -------------------------------
[CORPORATE SEAL]
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EXHIBIT 4.45
THIRD AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$55,000,000 Greensboro, North Carolina
January 6, 1998
FOR VALUE RECEIVED, the undersigned INSTEEL INDUSTRIES, INC., a North
Carolina corporation ("Borrower"), promises to pay to FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, a national banking association ("Bank"), or order, at the
principal office of the Bank in Greensboro, North Carolina, or at such other
place as the Bank may from time to time designate in writing, the principal sum
of Fifty-Five Million Dollars ($55,000,000), or, if less, the unpaid balance of
all Revolving Loans made by the Bank to the Borrower under the Revolving Line of
Credit extended by the Bank to the Borrower pursuant to the Credit Agreement,
together with interest on the unpaid principal amount of this Note at the rates
provided in the Credit Agreement.
This Note amends and restates in its entirety that certain $50,000,000
Second Amended and Restated Revolving Credit Note, dated April 11, 1997,
executed by Borrower to the order of Bank and is the Revolving Credit Note
issued to evidence Revolving Loans made by the Bank to the Borrower under the
Revolving Line of Credit pursuant to Section 2.1 of the Credit Agreement, dated
June 14, 1995, between the Borrower and the Bank, as the same may from time to
time be amended, modified, restated or supplemented ("Credit Agreement") and is
entitled to the benefits of, and the remedies provided in, the Credit Agreement.
All of the terms, conditions and covenants of the Credit Agreement are expressly
made a part of this Note, by reference in the same manner and with the same
effect as if set forth herein. Reference is made to the Credit Agreement for
provisions for the maturity, payment, prepayment and acceleration of this Note.
All capitalized terms used in this Note without definition shall have the
meanings ascribed to such terms in the Credit Agreement.
The Borrower, for itself and its successors and assigns, expressly waives
presentment for payment, demand, protest and notice of demand, notice of
dishonor and notice of nonpayment and all other notices.
This Note shall be governed by, construed and enforced in accordance with
the internal laws, and not the laws of conflicts, of the State of North
Carolina.
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EXHIBIT 4.45
In the event that this Note shall at any time after maturity be collected
by or through an attorney-in-law, the Borrower agrees to pay, in addition to
the entire unpaid principal balance and interest due hereunder, all collection
costs, including reasonable attorneys' fees, incurred by the Bank in collecting
the indebtedness due hereunder, computed on the basis of usual and customary
rates and not on the basis of a fixed percentage of the indebtedness due
hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed under
seal by its duly authorized corporate officers and its corporate seal to be
hereunto affixed on the day and year first above written.
ATTEST: INSTEEL INDUSTRIES, INC.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------- ------------------------------
Assistant Secretary Title: Chief Financial Officer
and Treasurer
[CORPORATE SEAL]
[SEAL]
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