EXHIBIT 4.12
AMENDMENT NO. 10 TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT dated as of June 24, 2005, by and among the financial
institutions whose signatures appear below (individually a "Bank," collectively
the "Banks"), Comerica Bank, as Administrative Agent for the Banks (in such
capacity, "Agent"), and Olympic Steel, Inc., an Ohio corporation (the
"Company").
RECITALS:
A. Company, Agent and Comerica Bank, Fifth Third Bank, Standard Federal
Bank N.A., Fleet Capital Corporation and KeyBank National Association are
parties to that certain Amended and Restated Credit Agreement dated as of
December 30, 2002, as previously amended ("Credit Agreement").
B. Company, the Banks and Agent desire to amend the Credit Agreement as
set forth below.
NOW THEREFORE, the parties agree as follows:
1. The definition of "Revolving Credit Aggregate Commitment,"
"Revolving Credit Maturity Date", "Term Loan A Maturity Date" and "Term Loan B
Maturity Date" set forth in Section 1.1 of the Credit Agreement are amended to
read as follows:
"'Revolving Credit Aggregate Commitment' shall mean (i) from
March 31, 2005 through June 30, 2005, One Hundred Thirty Million
Dollars ($130,000,000) and (ii) commencing July 1, 2005 and thereafter,
One Hundred Ten Million Dollars ($110,000,000), in either case, subject
to any increase in the Revolving Credit Aggregate Commitment pursuant
to Section 2.17 of this Agreement, by an amount not to exceed the
Revolving Credit Optional Increase, and subject to reduction or
termination under Section 2.13, 2.14 or 9.2 hereof."
"Revolving Credit Maturity Date" shall mean the earlier to
occur of (i) December 15, 2008, as such date may be extended pursuant
to Section 2.16 hereof and (ii) the date on which the Revolving Credit
Aggregate Commitment shall terminate in accordance of the provisions of
this Agreement.
"Term Loan A Maturity Date" shall mean January 1, 2008.
"Term Loan B Maturity Date" shall mean December 15, 2008.
2. The following definitions are added to Section 2.1 of the Credit
Agreement in alphabetical order:
"New Bank" is defined in clause (b) of Section 2.17.
"New Bank Addendum" shall mean an addendum, substantially in
the form of Exhibit Q hereto, to be executed and delivered by each Bank
becoming a party to this Agreement pursuant to Section 2.17 hereof.
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"Revolving Credit Optional Increase" shall mean an amount of
up to Twenty Five Million Dollars ($25,000,000), minus the portions
thereof applied from time to time after the Effective Date under
Section 2.17 hereof to increase the Revolving Credit Aggregate
Commitment.
3. Section 2.17 is added to the Credit Agreement as follows:
"2.17 Optional Increase in Revolving Credit Aggregate Commitment.
Provided that no Default or Event of Default has occurred and is
continuing, and provided that the Company has not previously elected to
terminate the Revolving Credit Aggregate Commitment under Section 2.14
hereof, the Company may request that the Revolving Credit Aggregate
Commitment be increased in an aggregate amount (for all such Requests
under this Section 2.17) not to exceed the Revolving Credit Optional
Increase, subject, in each case, to Section 11.1 hereof and to the
satisfaction concurrently with or prior to the date of each such
request of the following conditions:
(a) the Company shall have delivered to the Agent not less than
seventy five (75) days prior to the Revolving Credit Maturity
Date then in effect a written request for such increase,
specifying the amount of Revolving Credit Optional Increase
thereby requested (each such request, a "Request for
Increase"); provided, however that in the event the Company
has previously delivered a Request for Increase pursuant to
this Section 2.17, the Company may not deliver a subsequent
Request for Increase until all the conditions to effectiveness
of such first Request for Increase have been fully satisfied
hereunder (or such Request for Increase has been withdrawn);
and provided further that the Company may make no more than
two Requests for Increase in any calendar year;
(b) Agent shall promptly deliver to each of the existing Banks a
copy of the Request for Increase and before any new lender may
become a New Bank under this Agreement, each existing Bank
thereafter shall have a period of thirty (30) days to notify
Company and Agent in writing whether it elects to increase its
Revolving Credit Commitment and the amount of any such
increase proposed by such existing Bank ("Increasing Bank")
and in the event the aggregate increases proposed by the
Increasing Banks with respect to any Request for Increase
exceeds the amount of the increase requested by Company, then
Company and Agent shall jointly determine the amount of the
increases for each Increasing Bank;
(c) each Increasing Bank and any other lender or lenders meeting
the requirements of Section 13.8(c) hereof and acceptable to
the Company and the Agent (such lender, including, for the
purposes of this Section 2.17, any Increasing Bank, the "New
Bank(s)"; provided, however, in no event shall more than two
lenders which are not Banks on the date this Section 2.17 is
added to the Credit Agreement become a New Bank under this
Section 2.17 without the prior written consent of the Agent
and Company) shall have become a party to this Agreement by
executing and delivering a New Bank Addendum for a minimum
amount (including for the purposes of this Section 2.17, the
existing commitment of any existing
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Bank) for each such New Bank of Fifteen Million Dollars
($15,000,000) and an aggregate amount for all such New Banks
of that portion of the Revolving Credit Optional Increase,
taking into account the amount of any prior increase in the
Revolving Credit Aggregate Commitment (pursuant to this
Section 2.17), covered by the applicable Request, provided,
however that each New Bank shall remit to the Agent funds in
an amount equal to its Percentage (after giving effect to this
Section 2.17) of all Advances of the Revolving Credit then
outstanding, such sums to be reallocated among and paid to the
existing Banks based upon the new Percentages as determined
below;
(d) the Company (i) shall have paid to the Agent for distribution
to the existing Banks, as applicable, all interest, fees
(including the Revolving Credit Facility Fee and the Letter of
Credit Fees) and other amounts, if any, accrued to the
effective date of such increase and any breakage fees
attributable to the reduction (prior to the last day of the
applicable Interest Period) of any outstanding
Eurocurrency-based Advances, calculated on the basis set forth
in Section 11.1 hereof as though Company has prepaid such
Advances and (ii) shall have paid to each New Bank a special
letter of credit fee on the Letters of Credit outstanding on
the effective date of such increase, calculated on the basis
of the Letter of Credit Fees which would be applicable to such
Letters of Credit if issued on the date of such increase, for
the period from the effective date of such increase to the
next date on which a payment of the per annum letter of credit
fees under Section 3.4(a) of this Agreement become due and
payable under Section 3.4(c) of this Agreement;
(e) the Company shall have executed and delivered to the Agent new
Revolving Credit Notes payable to each of the New Banks in the
face amount of each such New Bank's Percentage of the
Revolving Credit Aggregate Commitment (after giving effect to
this Section 2.17) and, if applicable, renewal and replacement
Revolving Credit Notes payable to each of the existing Banks
in the face amount of each such Bank's Percentage of the
Revolving Credit Aggregate Commitment (after giving effect to
this Section 2.17), each of such Revolving Credit Notes to be
substantially in the form of Exhibit B to this Agreement, as
applicable, and dated as of the effective date of such
increase (with appropriate insertions relevant to such Notes
and acceptable to the applicable Bank, including the New
Banks);
(f) except to the extent such representations and warranties are
not, by their terms, continuing representations and
warranties, but speak only as of a specific date, the
representations and warranties made by Company, each Guarantor
or any other party to any of the Loan Documents (excluding the
Agent and Banks) in this Agreement or any of the other Loan
Documents, and the representations and warranties of any of
the foregoing which are contained in any certificate, document
or financial or other statement furnished at any time
hereunder or thereunder or in connection herewith or therewith
shall have been true and correct in all
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material respects when made and shall be true and correct in
all material respects on and as of the effective date of such
increase; and (ii) no Default or Event of Default shall have
occurred and be continuing as of such date; and
(g) such other amendments, acknowledgments, consents, documents,
instruments, any registrations, if any, shall have been
executed and delivered and/or obtained by Company as required
by Agent or the Majority Banks, in their reasonable
discretion, including, without limitation, amendments to the
Collateral Documents and date down endorsements to the title
policies required under Section 5.3(b) of this Agreement.
Promptly on or after the date on which all of the conditions
to such Request for Increase set forth above have been satisfied, Agent
shall notify the Company and each of the Banks of the amount of the
Revolving Credit Aggregate Commitment as increased pursuant this
Section 2.17 and the date on which such increase has become effective
and shall prepare and distribute to Company and each of the Banks
(including the New Banks) a revised Schedule 1.2 to this Agreement
setting forth the applicable new Percentages of the Banks (including
the New Bank(s), taking into account such increase and assignments (if
any)."
4. Section 8.5 of the Credit Agreement is amended to read as follows:
"8.5 Restricted Payments. Declare or make, or permit any
Subsidiary to, declare or make any distributions, dividend, payment or
other distribution of assets, properties, cash, rights, obligations or
securities (collectively, "Distributions") on account of any membership
interests or any shares of any class of its capital stock, as
applicable, or issue, purchase, redeem or otherwise acquire for value
any membership interests or any shares of its capital stock, as
applicable, or any warrants, rights or options to acquire such shares
or membership interests, now or hereafter outstanding, except that
provided no Default or Event of Default shall have occurred and be
continuing:
(a) the Subsidiaries may make Distributions to the Company or any
Guarantor;
(b) the Company or any of the Subsidiaries may declare and make
dividends to its shareholders payable solely in shares of that
class of stock held by such shareholders;
(c) the Company may issue stock options or shares under its
employee stock option plan and employee stock purchase plan;
(d) the Company may repurchase stock options not to exceed
$100,000 in the aggregate during any fiscal year;
(e) Company may make cash Distributions to the holders of the
Equity Interests in Company during any fiscal quarter of
Company ("Current
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Quarter"), provided that Company will be in compliance with
Section 7.9 of this Agreement as of the last day of such
Current Quarter; and
(f) Company may redeem shares of the capital stock of Company, not
to exceed Fifteen Million Dollars ($15,000,000) in the
aggregate on and after June 24, 2005, provided that
immediately after giving effect to any such redemption, all of
the following requirements shall have been satisfied:
(1) Availability shall be not less than Twenty Five
Million Dollars ($25,000,000);
(2) not less than five (5) Business Days prior to the
date of the proposed redemption, Agent shall have
received written notice of the proposed redemption,
the proposed number and class of shares to be
redeemed, the redemption price and the proposed date
for such redemption ("Redemption Notice"), together
with pro forma financial statements and a Covenant
Compliance Certificate (in the form required under
Section 7.1(b) and 7.2 of this Agreement) dated as of
the proposed date of redemption (taking into account
the proposed redemption) copies of which shall
promptly be delivered by Agent to each of the Banks,
establishing that immediately after giving effect to
such redemption the Consolidated Leverage Ratio will
be not more than 1.50 to 1.0; and
(3) In connection with the first Redemption Notice only,
Company shall have paid Agent for the pro rata
benefit of the Banks in accordance with their
respective Percentages a one-time, non-refundable fee
equal to $37,500.
5. The first sentence of Section 13.8(c) of the Agreement is amended to
read as follows:
"The Company and Agent acknowledge that each of the Banks may at
any time and from time to time, subject to the terms and
conditions hereof, assign or grant participations in such Bank's
rights and obligations hereunder (on a pro rata basis only based
on the assigning Bank's Percentage of each of the Revolving
Credit, Term Loan A (if any) and Term Loan B (if any)) and under
the other Loan Documents to any commercial bank, savings and loan
association, insurance company, pension fund, mutual fund,
commercial finance company or other similar institution, the
identity of which institution is approved by Company and Agent,
such approval not to be unreasonably withheld or delayed;
provided, however, that (i) the approval of Company shall not be
required upon the occurrence and during the continuance of an
Event of Default, (ii) the approval of Company and Agent shall not
be required for any such sale, transfer, assignment or
participation to the Affiliate of an assigning Bank, any other
Bank or any Federal Reserve Bank and (iii) no assignment shall be
made or participation granted to an entity which is a competitor
of Company and their Subsidiaries without the consent
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of the Company, which consent may be withheld in the sole
discretion of Company."
6. On July 1, 2005, Company shall repay the indebtedness outstanding
under the Revolving Credit Notes to the extent such indebtedness exceeds the
Revolving Credit Aggregate Commitment as in effect on that date.
7. The Obligations, as may be increased by Section 2.17 of this
Agreement shall continue to be secured by the liens on and security interest in
the Collateral under terms of the Collateral Documents.
8. Except as expressly modified hereby, all the terms and conditions of
the Credit Agreement shall remain in full force and effect.
9. Company hereby represents and warrants that, after giving effect to
the amendments contained herein, (a) execution, delivery and performance of this
Amendment and any other documents and instruments required under this Amendment
or the Credit Agreement are within its corporate powers, have been duly
authorized, are not in contravention of law or the terms of its Articles of
Incorporation or Bylaws, and do not require the consent or approval of any
governmental body, agency, or authority; and this Amendment and any other
documents and instruments required under this Amendment or the Credit Agreement,
will be valid and binding in accordance with their terms; (b) the continuing
representations and warranties made by Company set forth in Sections 6.1 through
6.19 and 6.21 through 6.24 of the Credit Agreement are true and correct on and
as of the date hereof with the same force and effect as if made on and as of the
date hereof; (c) the continuing representations and warranties of Company set
forth in Section 6.20 of the Credit Agreement are true and correct as of the
date hereof with respect to the most recent financial statements furnished to
the Bank by Company in accordance with Section 7.1of the Credit Agreement; and
(d) no Default or Event of Default has occurred and is continuing as of the date
hereof.
10. Capitalized terms used but not defined herein shall have the
meaning set forth in the Credit Agreement.
11. This Amendment may be signed in counterparts.
12. This Amendment shall become effective (according to the terms and
as of the date hereof) upon satisfaction by Company of the following conditions:
(a) Agent shall have received counterpart originals of this
Amendment, in each case duly executed and delivered by Company, the
Agent, the Banks, and the Guarantors and originals of the Loan
Documents identified on the Closing Agenda annexed hereto duly executed
by the parties thereto and, where applicable, in recordable form.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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WITNESS the due execution hereof as of the day and year first above
written.
COMERICA BANK, OLYMPIC STEEL, INC.
as Agent
By: By:
-------------------------------- ---------------------------------
Its: Its:
------------------------------- --------------------------------
SWING LINE BANK: COMERICA BANK
By:
---------------------------------
Its:
--------------------------------
ISSUING BANK: COMERICA BANK
By:
---------------------------------
Its:
--------------------------------
BANKS: COMERICA BANK
By:
---------------------------------
Its:
--------------------------------
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STANDARD FEDERAL BANK
NATIONAL ASSOCIATION
By:
---------------------------------
Its:
--------------------------------
FIFTH THIRD BANK
By:
---------------------------------
Its:
--------------------------------
FLEET CAPITAL CORPORATION
By:
---------------------------------
Its:
--------------------------------
KEYBANK NATIONAL ASSOCIATION
By:
---------------------------------
Its:
--------------------------------
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Acknowledged by the undersigned Guarantors as of June 24, 2005.
GUARANTORS:
OLYMPIC STEEL LAFAYETTE, INC.
By:
---------------------------------
Its:
--------------------------------
OLYMPIC STEEL MINNEAPOLIS, INC.
By:
---------------------------------
Its:
--------------------------------
OLYMPIC STEEL IOWA, INC.
By:
---------------------------------
Its:
--------------------------------
OLY STEEL WELDING, INC.
By:
---------------------------------
Its:
--------------------------------
OLYMPIC STEEL RECEIVABLES, L.L.C.
By:
---------------------------------
Its:
--------------------------------
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EXHIBIT Q
NEW BANK ADDENDUM
THIS NEW BANK ADDENDUM, dated ______________________, to the
Amended and Restated Credit Agreement dated as of December 30, 2002 (as
otherwise amended or modified from time to time, the "Credit Agreement"), among
Olympic Steel, Inc. ("Company"), each of the financial institutions parties
thereto (collectively, the "Banks") and Comerica Bank, as Agent for the Banks.
W I T N E S S E T H:
WHEREAS, the Credit Agreement provides in Section 2.17 thereof
that a financial institution, although not originally a party thereto, may
become a party to the Credit Agreement with the consent of the Company and the
Agent by executing and delivering to the Agent a New Bank Addendum to the Credit
Agreement in substantially the form of this New Bank Addendum; and
WHEREAS, the undersigned New Bank was not an original party to
the Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, the New Bank hereby agrees as follows:
The New Bank hereby confirms that it has received a copy of
the Credit Agreement and the exhibits and schedules referred to therein, and all
other Loan Documents which it considers necessary, together with copies of the
other documents which were required to be delivered under the Credit Agreement
as a condition to the making of the loans thereunder. The New Bank acknowledges
and agrees that it: (a) has made and will continue to make such inquiries and
has taken and will take such care on its own behalf as would have been the case
had its commitment been granted and its loans been made directly by such New
Bank to the Company without the intervention of the Agent or any other Bank; and
(b) has made and will continue to make, independently and without reliance upon
the Agent or any other Bank, and based on such documents and information as it
has deemed appropriate, its own credit analysis and decisions relating to the
Credit Agreement. The New Bank further acknowledges and agrees that the Agent
has made any representations or warranties about the creditworthiness of the
Company or any other party to the Credit Agreement or any other of the Loan
Documents, or with respect to the legality, validity, sufficiency or
enforceability of the Credit Agreement, or any other of the Loan Documents.
New Bank represents and warrants that it is a Person to which
assignments are permitted pursuant to Sections 14.8(c) and (d) of the Credit
Agreement.
Except as otherwise provided in the Credit Agreement,
effective as of the Effective Date (as defined below):
(a) the New Bank (i) shall be deemed automatically to have
become a party to the Credit Agreement and the other Loan Documents, and to have
all the rights and obligations of a party to the Credit Agreement and the other
Loan Documents, as if it were an original signatory; and (ii) agrees to be bound
by the terms and conditions set
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forth in the Credit Agreement and the other Loan Documents as if it were an
original signatory thereto; and
(b) the New Bank shall be a Revolving Credit Bank and its
Percentage of the Revolving Credit (and its risk participation in Letters of
Credit) shall be as set forth in the attached revised Schedule 1.2(Percentages);
provided any fees paid prior to the Effective Date, including any Letter of
Credit Fees, shall not be recalculated, redistributed or reallocated by Company,
Agent or the Banks.
As used herein, the term "Effective Date" means the date on
which all of the following have occurred or have been completed, as reasonably
determined by the Agent:
(1) the Company shall have paid to the Agent, all interest,
fees (including the Revolving Credit Facility Fee) and other amounts, if any,
accrued to the Effective Date for which reimbursement is then owing under the
Credit Agreement;
(2) New Bank shall have remitted to the Agent funds in an
amount equal to its Percentage of all Advances of the Revolving Credit
outstanding as of the Effective Date; and
(3) the Company shall have executed and delivered to the Agent
for the New Bank, a new Revolving Credit Note payable to such New Bank in the
face amount of such New Bank's Percentage of the Revolving Credit Aggregate
Commitment (after giving effect to this New Bank Addendum, and any other New
Bank Addendum executed concurrently herewith).
The Agent shall notify the New Bank, along with Company, of
the Effective Date. The New Bank shall deliver herewith to the Agent
administrative details with respect to the funding and distribution of Advances
(and Letters of Credit) as requested by Agent.
Terms defined in the Credit Agreement and not otherwise
defined herein shall have their defined meanings when used herein.
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IN WITNESS WHEREOF, the undersigned has caused this New Bank Addendum
to be executed and delivered by a duly authorized officer on the date first
above written.
[Name of New Bank]
-----------------
By:
---------------------------------
Its:
--------------------------------
Accepted this day of , 20 .
-- ------- --
OLYMPIC STEEL, INC.
By:
---------------------------------
Its:
--------------------------------
Accepted this day of , 20 .
-- ------- --
COMERICA BANK, as Agent
By:
---------------------------------
Its:
--------------------------------
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