EXHIBIT 4.10
AMENDMENT NO. 8 TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT dated as of February 25, 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 reference to "$50,000,000" in clause (ii)(B) of the definition
of "Borrowing Base" set forth in Section 1 of the Agreement is deleted and
"$65,000,000" is inserted in lieu thereof.
2. The definition of "Consolidated Debt Service Coverage Ratio" set
forth in Section 1 of the Agreement is amended to read as follows:
"'Consolidated Debt Service Coverage Ratio' shall mean as of any date
of determination the ratio of (a) Consolidated Pre-Tax Income for the
Applicable Measuring Period ending on such date of determination, plus
to the extent deducted in determining Consolidated Pre-Tax Income,
Consolidated Interest Expense for such period and depreciation and
amortization for such period, income tax refunds received in cash
during such period and other non-cash items acceptable to Agent, less
cash (non-financed) Capital Expenditures of Company and its
Consolidated Subsidiaries made or paid during such period and income
taxes paid in cash by Company and its Consolidated Subsidiaries during
such period to (b) all scheduled interest and principal payable during
such period with respect to Consolidated Funded Debt plus all cash
Distributions paid by Company during such period to the holders of its
Equity Interests."
3. The definition of "Debt" set forth in Section 1 of the Agreement is
amended to read as follows:"
"'Debt' shall mean as to any Person, without duplication (a) all Funded
Debt of a Person, (b) all Guarantee Obligations of such Person, (c) all
obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such
Person, (d) all indebtedness of such Person arising in connection with
any interest rate swap transaction, basis swap transaction, forward
rate transaction, commodity swap transaction, equity transaction,
equity index transaction, foreign exchange transaction, cap
transaction, floor transaction (including any option with respect to
any of these transactions and any combination of any of the foregoing)
entered into by such Person and (e) any obligations in respect of
phantom stocks which would be classified as liabilities on the balance
sheet of a Person, but shall exclude obligations of Company and/or any
Subsidiary under any Deferred Inventory Purchase Program."
4. The definition of "Distribution" set forth in Section 1 of the
Agreement is amended to read as follows:
"'Distribution' is defined in Section 8.5 hereof."
5. The definition of "Swing Line Maximum Amount" set forth in Section 1
of the Agreement is amended to read as follows:
"Swing Line Maximum Amount" shall mean Twenty Million Dollars
($20,000,000)."
6. Schedule 7.6 of the Agreement is amended to read as follows:
"7.6 Inspection of Property; Books and Records, Discussions. Permit
Agent and each Bank, through their authorized attorneys, accountants
and representatives (a) at all reasonable times during normal business
hours, upon the prior written notice by Agent or such Bank, to examine
Company's and each Subsidiary's books, accounts, records, ledgers and
assets and properties of every kind and description wherever located;
(b) at any time and from time to time (in any event, at least once a
year unless Availability is less than $12,500,000, in which case, at
least once a quarter), upon the request of the Majority Banks, to
conduct full or partial collateral audits of Company and the
Subsidiaries to be completed by an appraiser as may be selected by
Agent and the Majority Banks and consented to by Company (such consent
not to be unreasonably withheld), with all reasonable costs and
expenses of such audits to be reimbursed by Company; provided, however,
that prior to the occurrence and continuance of any Default or Event of
Default, the Company shall be required to reimburse the Agent for the
reasonable costs and expenses of no more than one (1) (unless
Availability is less than $12,500,000, in which case four (4)) such
audit(s) conducted by Agent in any year and provided further, however,
that Company shall be required to reimburse the Agent for all
reasonable costs and expenses of all audits conducted after the
occurrence and during the continuance of a Default or Event of Default;
and (c) permit Agent and each Bank or their authorized representatives,
at reasonable times and intervals upon prior written notice, to visit
all of their respective offices, discuss their respective financial
matters with their respective officers and independent certified or
chartered public accountants, as applicable, and, by this provision,
Company authorizes such accountants to discuss the finances and affairs
of Company and the Subsidiaries (provided that Company is given an
opportunity to participate in such discussions) and examine any of its
or their books and other corporate records. Notwithstanding the
foregoing, all information furnished to the Agent or the Banks
hereunder shall be subject to the undertaking of the Banks set forth in
Section 13.11 hereof. The first collateral audit under this Section 7.6
shall be commenced by Agent within 90 days of the Effective Date."
7. Section 8.1(c) of the Agreement is amended to read as follows:
"(c) Debt of the Company or a Subsidiary, excluding Debt otherwise
permitted under this Section 8.1, incurred to finance the acquisition
of fixed or capital assets (whether pursuant to a loan or a Capitalized
Lease), provided that the aggregate amount of all such Debt shall not
exceed Two Million Dollars ($2,000,000) at any one time outstanding."
8. Section 8.4(j) of the Agreement is amended to read as follows:
"(j) Subject to the provisions of Sections 2.13(b) and 4.11(b) of this
Agreement, sales of Equity Interests in Company under any employee
stock purchase plan or employee stock option agreement and other sales
of Equity Interests in Company which do not result in a Change in
Control;"
9. The word "and" is added to the end of Section 8.5(d) and the
following Section 8.5(e) is added to the Agreement:
"(e) cash Distributions by Company to the holders of the Equity
Interests in Company during any fiscal quarter of Company ("Current
Quarter"), provided that Company will be in compliance with Section 7.9
of this Agreement as of the last day of such fiscal quarter."
10. Section 8.6 of the Agreement is amended to read as follows:
"8.6 Limitation on Capital Expenditures. Make or commit to make (by way
of the acquisition of securities of a Person or otherwise) any
expenditure in respect of the purchase or other acquisition of fixed or
capital assets (excluding any such asset acquired in connection with
normal replacement and maintenance programs properly charged to current
operations) except Capital Expenditures which shall not exceed Fifteen
Million Dollars ($15,000,000) during any fiscal year of Company."
11. Section 8.7(i) of the Agreement is amended to read as follows:
"(i) additional Investments in or to G.S.P. LLC and/or OLP LLC made
after the date hereof, in addition to those identified on Schedule 8.7
annexed hereto not to exceed $2,500,000 in aggregate amount at any time
outstanding (excluding the Investments so identified on Schedule 8.7);"
12. The word "and" is added to the end of Section 8.7(j) (before the
".") and the following Section 8.7(k) is added to the Agreement:
"(k) the investment of funds under the terms of the Olympic Steel, Inc.
Executive Deferred Compensation Plan dated effective December 1, 2004
and any mandatorily deferred senior management compensation plan
established by Company after the date hereof."
13. Each reference to "Five Hundred Thousand Dollars ($500,000)" and
"$500,000" in Sections 9.1(g) and (h) of the Agreement is deleted and
"One Million Dollars ($1,000,000)" is inserted in lieu thereof.
14. Except as expressly modified hereby, all the terms and conditions
of the Credit Agreement shall remain in full force and effect.
15. 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.
16. Capitalized terms used but not defined herein shall have the
meaning set forth in the Credit Agreement.
17. This Amendment may be signed in counterparts.
18. This Amendment shall become effective (according to the terms and
as of the date hereof) upon satisfaction by Company of the following conditions
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.
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:
-------------------------------------------------
STANDARD FEDERAL BANK
NATIONAL ASSOCIATION
By:
--------------------------------------------------
Its:
-------------------------------------------------
FIFTH THIRD BANK
By:
--------------------------------------------------
Its:
-------------------------------------------------
FLEET CAPITAL CORPORATION
By:
--------------------------------------------------
Its:
-------------------------------------------------
KEYBANK NATIONAL ASSOCIATION
By:
--------------------------------------------------
Its:
-------------------------------------------------
Acknowledged by the undersigned Guarantor as of February 25, 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:
--------------------------------------------------------