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EXHIBIT 4.42
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment"), dated this 11th day of April, 1997, is made by and between
INSTEEL INDUSTRIES, INC., a North Carolina corporation (the "Borrower"); and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a national banking association
(the "Bank"), to the Amended and Restated Credit Agreement, dated January 26,
1996 (as amended, modified, restated or supplemented from time to time, 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 $35,000,000 and a Letter
of Credit Facility in the amount of $17,500,000.
B. The Borrower has requested that the Bank (i) increase the amount of
the Revolving Line of Credit Commitment from the sum of $35,000,000 to the sum
of $50,000,000, and (ii) decrease the amount of the Letter of Credit Facility
from the sum of $17,500,000 to the sum of $10,000,000.
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 Recitals. The third recital of the Credit Agreement is amended by (a)
deleting in the second line thereof the figure "$35,000,000" and by
substituting in lieu thereof the figure "$50,000,000", and (b) deleting in the
third line thereof the figure "$17,500,000" and by substituting in lieu thereof
the figure "$10,000,000".
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1.2 Defined Terms. Section 1.1 of the Credit Agreement is amended by
deleting the definitions of "Letter of Credit Facility Commitment" and
"Revolving Line of Credit Commitment" in their entirety and by substituting in
lieu thereof the following:
"Letter of Credit Facility Commitment" shall mean $10,000,000.
"Revolving Line of Credit Commitment" shall mean $50,000,000.
1.3 Exhibits. Exhibit A to the Credit Agreement is hereby amended by
deleting such exhibit in its entirety and by replacing it with a new Exhibit A
attached hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Bank that:
2.1 Acknowledgement of Obligations. As of the close of business on
April 8, 1997, the aggregate principal amount of Revolving Loans owing by the
Borrower was in the sum of $27,815,204.99, the aggregate amount of Letter of
Credit Obligations owing by the Borrower was in the sum of $4,952,467.01, 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.
2.2 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.
2.3 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.
2.4 No Event of Default. No Default or Event of Default exists.
ARTICLE III
MODIFICATION OF LOAN DOCUMENTS
3.1 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.
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3.2 Note. The Revolving Credit Note evidencing the unpaid Revolving Loans
made by the Bank under the Revolving Line of Credit is amended and restated in
its entirety pursuant to the $50,000,000 Second Amended and Restated Revolving
Credit Note, dated of even date herewith, executed by the Borrower to the order
of the Bank.
ARTICLE IV
GENERAL
4.1 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 the provisions thereof. As used in the Credit Agreement and
the other Loan Documents, "hereinafter", "hereto", "hereof", 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.
4.2 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.
4.3 Headings. The headings of this Amendment are for the purpose of
reference only and shall not effect the construction of this Amendment.
4.4 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]
[signatures continued on next page]
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XXXXX XXXXX XXXXXXXX XXXX
XX XXXXX XXXXXXXX
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Title: Vice President
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EXHIBIT A TO AMENDED AND
RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$50,000,000 Greensboro, North Carolina
April 11, 1997
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 Million Dollars ($50,000,000), or, if less, the unpaid balance of all
Revolving Loans made 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 $35,000,000
Amended and Restated Revolving Credit Note, dated January 26, 1996, 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 Amended and Restated Credit
Agreement, dated January 26, 1996, 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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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:
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[CORPORATE SEAL]
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SECOND AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$50,000,000 Greensboro, North Carolina
April 11, 1997
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 Million Dollars ($50,000,000), 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 $35,000,000
Amended and Restated Revolving Credit Note, dated January 26, 1996, 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 Amended and Restated Credit
Agreement, dated January 26, 1996, 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.
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.
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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]
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