EXHIBIT 4.1(D)
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. 4
TO CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT (this "Amendment Agreement") is made and
entered into as of this 16th day of November, 2001, 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 and by Amendment Agreement No. 3 to Credit
Agreement dated August 9, 2001 (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 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;
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 7, all terms used herein without definition shall
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have the definition provided therefor in the Agreement. Unless the context
requires otherwise, all terms used herein in paragraph 7 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. 4 as follows:
(a) Section 1.01 is hereby amended by adding the
following new definition thereto in the appropriate alphabetical order:
"Amendment No. 4" means Amendment Agreement No. 4 to
Credit Agreement and Equity Appreciation Rights Agreement
which Amendment No. 4 is dated November 16, 2001;
(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 for each of the periods
set forth below that percent per annum set forth opposite each
such period:
Applicable
Period Margin
Date of Amendment No. 4 through
December 31, 2001 3.00%
January 1, 2002 through March 31, 2002 3.25%
April 1, 2002 through June 30, 2002 3.50%
July 1, 2002 through October 15, 2002 3.75%"
(c) The definition of "Stated Termination Date" in
Section 1.1 is hereby further amended in its entirety so that as
amended it shall read as follows:
"`Stated Termination Date' means October 15, 2002."
(d) 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 October 15, 2002."
(e) The definition of "Total Revolving Credit Commitment"
in Section 1.1 is hereby amended in its entirety so that as amended it
shall read as follows:
"'Total Revolving Credit Commitment' means for the
period from the date of Amendment No. 4 through October 15,
2002 $50,000,000, subject to further reduction from time to
time in accordance with Section 2.2(e)."
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(f) 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
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April 30, 2002 $300,000
May 31, 2002 $300,000
June 30, 2002 $300,000
July 31, 2002 $700,000
August 31, 2002 $700,000
September 30, 2002 $700,000
provided, however, that the entire amount of Term Loan
Outstandings shall be due and payable in full on the Term Loan
Termination Date."
(g) Clause (iii) of the first paragraph of Section 2.1(e)
is hereby amended by (i) changing the reference to Section 10.6(c), (f)
and (g) to refer to Section 10.6(b), (c), (f) and (g) and (ii) adding
the following new sentence at the end of such paragraph:
"Notwithstanding the foregoing, the Net Proceeds received from
the sale of Inventory, other than in the ordinary course of
business, or Accounts Receivable shall be applied as
repayments of the Revolving Credit Outstandings to permanently
reduce the Total Revolving Credit Commitment."
(h) Section 2.2(b) is hereby amended by deleting the last
sentence thereof and inserting the following two sentences in lieu
thereof:
"Each Advance under the Revolving Credit Facility, other than
Base Rate Refunding Loans, shall be in an amount of at least
$100,000, and, if greater than $100,000, an integral multiple
of $100,000. The Borrower shall not be entitled to request an
Advance more frequently than once each calendar week."
(i) Section 9.1(i) is hereby amended in its entirety so
that as amended it shall read as follows:
"(i) as soon as practicable and in any event not
later than the last Business Day of each month during the
period from the date of Amendment No. 4 to the Facility
Termination Date deliver to the Agent and the Lenders a
monthly cash flow report and budget in form acceptable to the
Agent; and"
(j) Section 9.1(j) is hereby amended by deleting the
phrase "two weeks" appearing therein and inserting in lieu thereof the
word "month".
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(k) Section 9.22 is hereby amended in its entirety so
that as amended it shall read as follows:
"9.22. [*]. On or before November 30, 2001 engage,
at its cost and expense, a [*] acceptable to the Agent and the
Lenders in their sole discretion pursuant to the terms of an
agreement acceptable in form and substance to the Agent and
the Lenders in their sole discretion and have a [*] acceptable
to the Agent and the Lenders so engaged at all times."
(l) Section 10.1(a) is hereby further amended in its
entirety so that as amended it shall read as follows:
"(a) Consolidated Net Worth. Permit Consolidated
Net Worth to be less than (i) $35,000,000 and (ii) as at the
last day of each fiscal quarter of the Borrower ending after
September 29, 2001 and until (but excluding) the last day of
the next following fiscal quarter of the Borrower, the sum of
(A) the amount of Consolidated Net Worth required to be
maintained pursuant to this Section 10.1(a) as at the end of
the immediately preceding fiscal quarter (or, in the case of
the computation for the quarter ended December 29, 2001,
$35,000,000), plus (B) 50% of Consolidated Net Income (with no
reduction for net losses during any period) for the fiscal
quarter of the Borrower ending on such day (including within
"Consolidated Net Income" certain items otherwise excluded, as
provided for in the definition of "Consolidated Net Income"),
plus (C) 100% of the aggregate amount of all increases in the
stated capital and additional paid-in capital accounts of the
Borrower resulting from the issuance of equity securities or
other capital investments."
(m) The table in Section 10.1(b) is amended in its
entirety so that as amended it shall read as follows:
Period Amount
1st fiscal quarter of Fiscal Year 2002 $2,250,000
2nd fiscal quarter of Fiscal Year 2002 $3,000,000
3rd fiscal quarter of Fiscal Year 2002 $4,600,000
4th fiscal quarter of Fiscal Year 2002 $4,400,000"
(n) Clause (b) of Section 10.6 is amended in its entirety
so that as amended it shall read as follows:
"(b) the sale or transfer of assets associated with
facilities of Borrower or its Subsidiaries so long as the Net
Proceeds are paid to the Lenders as provided in Section 2.1(e)
and such Net Proceeds are not less than 90% of the forced
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[*] Confidential portion has been omitted and filed separately with the
Commission.
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liquidation value of such assets as determined based upon
appraisals currently in the possession of the Agent;"
3. Swing Line. From and after the date of this Amendment
Agreement the Borrower shall not be entitled to request Swing Line Loans, the
Swing Line shall terminate as of the date of this Amendment Agreement and the
Borrower shall have paid in full all Swing Line Outstandings.
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
and warrants 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 the date of the most recent financial reports of the Borrower
received by each Lender under Section 9.1 thereof, 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; and
(d) After giving effect to this Amendment Agreement
(including the waivers by the Lenders set forth herein), no event has
occurred and no condition 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.
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6. Deferral of Amendment Fee under Amendment No. 2. The
provisions regarding the Amendment Fee as set forth in paragraph 7 of Amendment
No. 2 are modified as follows: (i) payment of $[*] is due on each of January 31,
2002, April 30, 2002 and July 31, 2002 and (ii) payment of $[*] is due on
October 15, 2002. In the event all Obligations have been paid in full prior to
the date each payment shall be due, payment of such fees shall be waived.
7. 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. 4 as follows:
(a) Section 1.01 is hereby amended by adding the
following new definition thereto in the appropriate alphabetical order:
"Amendment No. 4" means Amendment Agreement No. 4 to
Credit Agreement and Equity Appreciation Rights Agreement
which Amendment No. 4 is dated November 16, 2001;"
(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) July 15, 2002 or (ii) occurrence of an Event of Default
under the Credit Agreement and ending on July 15, 2004;"
(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 April 15, 2002
and the Facility Termination Date (as defined in the Credit
Agreement) shall have occurred by April 15, 2002, the Rights
Fee shall be $[*];"
(d) 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 April 15,
2002 but are paid in full by July 15, 2002 and the Facility
Termination Date (as defined in the Credit Agreement) shall
have occurred by July 15, 2002, the Rights Fee shall be in a
maximum amount of $[*] but in no event less than the greater
of"
(i) [*]; or
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[*] Confidential portion has been omitted and filed separately with the
Commission.
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(ii) $[*]; and
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;
(iii) all other fees and expenses 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 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
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[*] Confidential portion has been omitted and filed separately with the
Commission.
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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/ Gary D. Kniskern By: /s/ H.O. Woltz III
- --------------------------------- ----------------------------
Print Name: Gary D. Kniskern Name: H.O. Woltz III
--------------------- ---------------------------
Title: President
/s/ Michael C. Gazmarian
- --------------------------------
Print Name: Michael C. Gazmarian
--------------------
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GUARANTORS:
INSTEEL WIRE PRODUCTS COMPANY
INTERCONTINENTAL METALS CORPORATION
FLORIDA WIRE AND CABLE, INC.
WITNESS:
/s/ Gary D. Kniskern By: /s/ H.O. Woltz III
- -------------------------------- ------------------------------
Print Name: Gary D. Kniskern Name: H.O. Woltz III
-------------------- ----------------------------
Title: President
/s/ Michael C. Gazmarian
- --------------------------------
Print Name: Michael C. Gazmarian
--------------------
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BANK OF AMERICA, N.A., as Agent for the Lenders
By: /s/ Michael J. Fey
-------------------------------------------
Name: Michael J. Fey
-----------------------------------------
Title: Vice President
--------------------------------------
BANK OF AMERICA, N.A., as a Lender
By: /s/ Michael J. Fey
-------------------------------------------
Name: Michael J. Fey
-----------------------------------------
Title: Vice President
--------------------------------------
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BRANCH BANKING AND TRUST COMPANY
By: /s/ Richard C.F. Spencer
----------------------------
Name: Richard C.F. Spencer
--------------------------
Title: Senior Vice President
-------------------------
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FIRST UNION NATIONAL BANK
By: /s/ H. Leon McGee
---------------------------
Name: H. Leon McGee
-------------------------
Title: S.V.P
----------------------
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NATIONAL BANK OF CANADA
By: /s/ Bill Handley | /s/ Alex M. Council IV
-----------------------------------------
Name: Bill Handley | Alex M. Council IV
---------------------------------------
Title: Vice President & Manager | Manager
--------------------------------------
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