Exhibit 10.26
FOURTH AMENDMENT
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") is made as of April 30, 2002, and entered into by
and between UNIVERSAL STAINLESS & ALLOY PRODUCTS, INC., a corporation organized
and existing under the laws of the state of Delaware (the "Borrower") and PNC
BANK, NATIONAL ASSOCIATION (the "Bank") and amends that certain Second Amended
and Restated Credit Agreement dated as of January 30, 1998 by and between the
Borrower and the Bank (the Second Amended and Restated Credit Agreement, as
amended prior to the date hereof, is hereinafter referred to as the "Original
Credit Agreement").
W I T N E S S E T H :
WHEREAS, the Borrower and the Bank entered into the Original Credit
Agreement; and
WHEREAS, upon the request of the Borrower, the Bank has agreed to
modify the Original Credit Agreement, all as more particularly set forth herein.
NOW THEREFORE, in consideration of the foregoing premises, the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
with the intent to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL CREDIT AGREEMENT
Section 1.01 Amendments to Section 1.1 of the Original Credit Agreement. (a) The
following defined terms and the definitions therefor are hereby added to Section
1.1 of the Original Credit Agreement and inserted in correct alphabetical order:
Dunkirk: Dunkirk Specialty Steel, LLC, a limited liability company
and wholly-owned subsidiary of the Borrower.
Dunkirk Acquisition. The purchase by Dunkirk from the New York Job
Development Authority of certain assets formerly owned by Empire Specialty
Steel, Inc. on or about February 14, 2002.
Fourth Amendment: The Fourth Amendment to Second Amended and
Restated Credit Agreement entered into by and between the Borrower and the
Bank and dated as of April 30, 2002.
Fourth Amendment Effective Date: April 30, 2002, or such later date
as all of the conditions set forth in the Fourth Amendment have either been
satisfied by the Borrower or waived in writing by the Bank.
(b) The definition for the following defined terms contained in the
Original Credit Agreement are hereby amended and restated in their entirety as
follows:
Government Loan: Any BIDP Loan, EDF Loan, EDS Loan, Melf Loan,
Redevelopment Authority Loan or any loan from the New York Job Development
Authority in connection with the Dunkirk Acquisition.
Revolving Credit Termination Date: April 30, 2004, as such date may
be extended upon the terms and conditions set forth in Section 2.1f, or if
any such day is not a Business Day, the Business Day next preceding such
date.
Section 1.02 Amendment to Section 4.1 of the Existing Agreement. Section 4.1 of
the Existing Agreement is hereby amended by deleting the reference therein to
"State of Delaware" and substituting therein a reference to "jurisdiction of
their respective incorporation or organization, as the case maybe" in
replacement thereof.
Section 1.03 Amendment to Section 4.3 of the Existing Agreement. Section 4.3 of
the Existing Agreement is hereby amended by deleting the reference therein to
"Holdings" and substituting therein a reference to "Holdings and Dunkirk" in
replacement thereof.
Section 1.04 Amendment to Section 4.13(viii) of the Existing Agreement. Section
4.13(viii) of the Existing Agreement is hereby amended by deleting the reference
therein to "Permitted Encumbrances" and substituting therein a reference to
"Permitted Encumbrances or Encumbrances contemplated by Section 6.3(iv) hereof"
in replacement thereof.
Section 1.05 Amendment to Section 6.1 of the Original Credit Agreement. Section
6.1 of the Original Credit Agreement is hereby amended and restated to read as
follows
6.1 Indebtedness. The Borrower shall not nor shall the Borrower permit
Holdings to create, incur, assume, cause, permit or suffer to exist or
remain outstanding, any Indebtedness, except for:
(i) Indebtedness owed by the Borrower to the Bank;
(ii) Indebtedness in existence as of the date hereof as set forth
on Schedule 6.1, including all extensions and renewals thereof; provided,
however that no such extension or renewal may involve an increase in the
principal amount of such Indebtedness or any other significant change in
the terms thereof;
(iii) Indebtedness due under Governmental Loans; provided, however
that (A) the outstanding principal amount of all such Indebtedness shall
not exceed, in the aggregate at any one time outstanding, $6,500,000, (B)
all such Indebtedness (other than Indebtedness to the New York Job
Development Authority incurred in connection with the Dunkirk Acquisition)
must (I) be subject to an Intercreditor Agreement or (II) be subordinated
to the repayment of the Obligations, as to security and repayment, in a
manner in form and substance satisfactory to the Bank, and (C) after the
Bridgeville Property Acquisition no such Indebtedness may be secured by an
Encumbrance on the
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Bridgeville Property;
(iv) Indebtedness incurred by the Borrower, other than
Indebtedness enumerated in items (i) through (iii) above, incurred after
the date hereof; provided, however, that the outstanding principal amount
of such Indebtedness shall not exceed, in the aggregate at any one time,
$1,500,000, and, provided further however, after the Bridgeville Property
Acquisition no such Indebtedness may be secured by an Encumbrance on the
Bridgeville Property;
(v) Subordinated Indebtedness incurred by the Borrower and
due to Holdings pursuant to the Holdings Credit Agreement; and
(vi) Indebtedness incurred to finance a Funded Acquisition
which indebtedness, if not a Government Loan, must be subordinated to the
Bank as to security and payment in a manner in form and substance
reasonably satisfactory to the Bank; provided, however, after the
Bridgeville Property Acquisition no such Indebtedness may be secured by an
Encumbrance on the Bridgeville Property.
Section 1.06 Amendment to Section 6.9 of the Existing Agreement. Section 6.9 of
the Existing Agreement is hereby amended by deleting the first reference to
"Holdings" therein and substituting therein a reference to "any Subsidiary of
the Borrower" in replacement thereof.
Section 1.07 Amendment to Section 6.10(v) of the Existing Agreement. Section
6.10(v) of the Existing Agreement is hereby amended by deleting the reference
therein to "Holdings shall not" and substituting therein a reference to "no
subsidiary of the Borrower shall" in replacement thereof.
Section 1.08 Amendment to Sections 4.1, 4.4, 4.10, 4.11, 4.21, 4.23, 5.2, 5.3,
5.4, 5.5, 5.6, 6.1, 6.2, 6.3, 6.10 and 8.1 of the Original Credit Agreement.
Sections 4.1, 4.4, 4.10, 4.11, 4.21, 4.23, 5.2, 5.3, 5.4, 5.5, 5.6, 6.1, 6.2,
6.3, 6.10 and 8.1 of the Original Credit Agreement are each hereby amended by
deleting the references contained therein to "Holdings" and substituting in
replacement thereof references to "each Subsidiary of the Borrower" or, to the
extent the context may so require, "any Subsidiary of the Borrower", mutatis
mutandis.
Section 1.09 No Other Amendments. The amendments to the Original Credit
Agreement set forth herein do not either implicitly or explicitly alter, waive
or amend, except as expressly provided in this Amendment, the provisions of the
Original Credit Agreement. The amendments set forth herein do not waive, now or
in the future, compliance with any other covenant, term or condition to be
performed or complied with nor do they impair any rights or remedies of the Bank
under the Original Credit Agreement with respect to any such violation. Nothing
in this Amendment shall be deemed or construed to be a waiver or release of, or
a limitation upon, the Bank's exercise of any of its rights and remedies under
the Original Credit Agreement or any other document or instrument delivered in
connection therewith, whether arising as a consequence of any Events of Default
which may now exist or otherwise, and all such rights and remedies are hereby
expressly reserved.
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ARTICLE II
BORROWER'S SUPPLEMENTAL REPRESENTATIONS
Section 2.01 Incorporation by Reference. As an inducement to the Bank to enter
into this Amendment, the Borrower hereby repeats herein for the benefit of the
Bank each of the representations and warranties made by the Borrower in the
Original Credit Agreement, as amended hereby, except that for purposes hereof
such representations and warranties shall be deemed to extend to and cover this
Amendment.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent. Each of the following shall be a condition
precedent to the effectiveness of this Amendment:
(a) The Bank shall have received, on or before the Fourth Amendment
Effective Date, the following items, each, unless otherwise indicated, dated on
or before the Fourth Amendment Effective Date and in form and substance
satisfactory to the Bank:
(i) A duly executed counterpart original of this Amendment;
(ii) A certificate from the Secretary of the Borrower certifying
that the Articles of Incorporation and Bylaws of the
Borrower previously delivered to the Bank are true,
complete, and correct;
(iii) A certificate from the Secretary of the Borrower certifying
the corporate resolutions of the Borrower authorizing the
execution and delivery of this Amendment and the officers
of the Borrower authorized to execute and deliver this
Amendment on behalf of the Borrower; and
(iv) Such other instruments, documents and opinions of counsel
as the Bank shall reasonably require, all of which shall be
satisfactory in form and content to the Bank
(b) The following statements shall be true and correct on the Fourth
Amendment Effective Date:
(i) the representations and warranties made pursuant to this
Amendment and in the other Loan Documents, as amended
hereby. are true and correct on and as of the Fourth
Amendment Effective Date as though made on and as of such
date;
(ii) no petition by or against the Borrower or any Subsidiary of
the Borrower has at any time been filed under the United
States Bankruptcy Code or under any similar act;
(iii) no Event of Default or event which with the giving of
notice, the passage of time or both would become an Event
of Default has occurred and is
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continuing, or would result from the execution of or
performance under this Amendment;
(iv) no material adverse change in the properties, business,
operations, financial condition or prospects of the
Borrower has occurred which has not been disclosed in
writing to the Bank; and
(v) the Borrower has in all material respects performed all
agreements, covenants and conditions required to be
performed on or prior to the date hereof under the Original
Credit Agreement and the other Loan Documents.
ARTICLE IV
GENERAL PROVISIONS
Section 4.01 Ratification of Terms. Except as expressly amended by this
Amendment, the Original Credit Agreement and each and every representation,
warranty, covenant, term and condition contained therein is specifically
ratified and confirmed. The Borrower hereby confirms that any collateral for the
Obligations, including but not limited to liens, Encumbrances, security
interests, mortgages and pledges granted by the Borrower or third parties, shall
continue unimpaired and in full force and effect. The Borrower expressly
ratifies and confirms the confession of judgment and waiver of jury trial
provisions contained in the Original Credit Agreement and the other Loan
Documents.
Section 4.02 References. All notices, communications, agreements, certificates,
documents or other instruments executed and delivered after the execution and
delivery of this Amendment in connection with the Original Credit Agreement, any
of the other Loan Documents or the transactions contemplated thereby may refer
to the Original Credit Agreement without making specific reference to this
Amendment, but nevertheless all such references shall include this Amendment
unless the context requires otherwise. From and after the Fourth Amendment
Effective Date, all references in the Original Credit Agreement and each of the
other Loan Documents to the Original Credit Agreement shall be deemed to be
references to the Original Credit Agreement, as amended hereby.
Section 4.03 Incorporation Into Original Credit Agreement. This Amendment is
deemed incorporated into the Original Credit Agreement. To the extent that any
term or provision of this Amendment is or may be deemed expressly inconsistent
with any term or provision of the Original Credit Agreement, the terms and
provisions hereof shall control.
Section 4.04 Counterparts. This Amendment may be executed in different
counterparts, each of which when executed by the Borrower and the Bank shall be
regarded as an original, and all such counterparts shall constitute one
amendment.
Section 4.05 Capitalized Terms. Except for proper nouns and as otherwise
defined herein, capitalized terms used herein as defined terms shall have the
same meanings herein as are ascribed to them in the Original Credit Agreement,
as amended hereby.
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Section 4.06 Taxes. The Borrower shall pay any and all stamp and other taxes and
fees payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Amendment and such other documents and
instruments as are delivered in connection herewith and agrees to save the Bank
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes and fees.
Section 4.07 Costs and Expenses. The Borrower will pay all costs and expenses of
the Bank (including, without limitation, the reasonable fees and the
disbursements of the Bank's counsel, Tucker Arensberg, P.C.) in connection with
the preparation, execution and delivery of this Amendment and the other
documents, instruments and certificates delivered in connection herewith.
Section 4.08 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO THE PROVISIONS THEREOF REGARDING
CONFLICTS OF LAW.
Section 4.09 Headings. The headings of the sections in this Amendment are for
purposes of reference only and shall not be deemed to be a part hereof.
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IN WITNESS WHEREOF, the parties hereto, with the intent to be
legally bound hereby, have caused this Fourth Amendment to Second Amended and
Restated Credit Agreement to be duly executed by their respective proper and
duly authorized officers as a document under seal, as of the day and year first
above written.
ATTEST: UNIVERSAL STAINLESS & ALLOY
PRODUCTS, INC.
(SEAL)
/s/ Paul A. McGrath /s/ Richard M. Ubinger
- ------------------------------- By: -----------------------------------
Name: Paul A. McGrath Name: Richard M. Ubinger
Title: Secretary Title: Chief Financial Officer
PNC BANK, NATIONAL ASSOCIATION
(SEAL)
/s/ David B. Gookin
By: -----------------------------------
Name: David B. Gookin
Title: Vice President
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