AMENDMENT NO. 2
Exhibit
10.26
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0, dated as of September 28, 2007, among EMPIRE RESOURCES, INC., a
corporation duly organized and validly existing under the laws of the State of
Delaware (the “Company”); each of
the lenders that is a signatory hereto (individually, a “Bank” and,
collectively, the “Banks”); and JPMORGAN
CHASE BANK, N.A., as agent for the Banks (in such capacity, together with its
successors in such capacity, the “Agent”).
The
Company, the Banks and the Agent are parties to an Amended and Restated Credit
Agreement, dated as of June 13, 2006 (as heretofore modified and supplemented
and in effect on the date hereof, the “Credit Agreement”),
providing, subject to the terms and conditions thereof, for extensions of credit
to be made by said Banks to the Company. The Company, the Banks and
the Agent now wish to amend the Credit Agreement in certain respects and,
accordingly, the parties hereto hereby agree as follows:
Section
1. Definitions. Except
as otherwise defined in this Amendment No. 2, terms defined in the Credit
Agreement are used herein as defined therein.
Section
2. Amendments. Subject
to the occurrence of the Amendment Effective Date and effective on such date,
the Credit Agreement shall be amended as follows:
2.01. New
Definitions. Section 1.01 of the Credit Agreement
(Definitions) shall be amended by inserting the following definition in the
appropriate alphabetical sequence:
“Amendment No. 2”
shall mean Amendment No. 2 to this Credit Agreement, dated as of September 28,
2007 among the Company, the Banks party thereto and the Agent.
2.02. Imbali
Matters. Clause (b)(y) of Section 8.18 shall be amended in its
entirety to read as follows:
“(y) by
no later than December 15, 2007, cause Imbali Metals Bvba to purchase for cash
all inventory in excess of €2,000,000 then held by it on consignment for the
Company (and upon such purchase the Agent’s Lien on such inventory so purchased
shall terminate).”
Section
3. Representations and
Warranties. The Company represents and warrants to the Banks
as of the Amendment Effective Date that (x) the representations and warranties
set forth in Section 7 of the Credit Agreement and in Article III of the
Amended and Restated Security Agreement are true and complete on the date hereof
as if made on and as of the date hereof and as if each reference in said
Section 7 to “this Agreement” included reference to this Amendment No. 2
except (i) changes resulting from transactions contemplated by or permitted by
the Credit Agreement, and (ii) those applicable to a specific date or period and
(y) no Default has occurred and is continuing.
Section
4. Conditions
Precedent. As provided in Section 2 above, the amendments to
the Credit Agreement set forth in said Section 2 shall become effective, as of
September 28, 2007 (the “Amendment Effective
Date”), upon the satisfaction of the following conditions:
(a) the
execution of this Amendment No. 2 by the Company, the Required Banks and the
Agent, and
(b) the
delivery by the Company of board of director resolutions approving this
Amendment No. 2 and the transactions contemplated herein, in form and substance
satisfactory to the Agent.
Section
5. Miscellaneous. Except
as herein provided, the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment No. 2 may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
amendatory instrument and any of the parties hereto may execute this Amendment
No. 2 by signing any such counterpart. This Amendment No. 2 shall be
governed by, and construed in accordance with, the law of the State of New
York.
EMPIRE
RESOURCES, INC.
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By:
/s/ Xxxxxx X. Xxxx
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Xxxxxx
X. Xxxx
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Vice
President
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JPMORGAN CHASE BANK, N.A.
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By
/s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx
X. XxXxxxx
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Vice
President
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Lending
Office for all Loans:
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JPMorgan
Chase Bank, N.A.
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000
Xxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Address
for Notices:
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JPMorgan
Chase Bank, N.A.
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1166
Avenue of the Xxxxxxxx, 00xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxxx
X. XxXxxxx
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Facsimile
No.: (000) 000-0000
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Telephone
No.: (000) 000-0000
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Email:
xxxxxxx.xxxxxxx@xxxxxxxx.xxx
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BANKS
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XXXXX
BROTHERS XXXXXXXX & CO.
By /s/ Xxxxxxx X.
Xxxxxxxx
Name: Xxxxxxx
X. Xxxxxxxx
Title: Vice
President
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Lending
Office for all Loans:
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000
Xxxxxxxx
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Xxx
Xxxx, XX 00000
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Address
for Notices:
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000
Xxxxxxxx
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Xxx
Xxxx, XX 00000
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Attention: Xxxxxxx
Xxxxxxxx
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Facsimile
No.: 000-000-0000
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Telephone
No.: 000-000-0000
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Email:
xxxxxxx.xxxxxxxx@xxx.xxx
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BANKS
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CITICORP
USA, INC.
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx
Xxxxxxxx
Title: Vice
President
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Lending
Office for all Loans:
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Global
Wealth Management
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000
0xx
Xxxxxx – 0xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Address
for Notices:
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Global
Wealth Management
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000
0xx
Xxxxxx – 0xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention: Xxxxx
Xxxxxxxx
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Facsimile
No.: 000-000-0000
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Telephone
No.: 000-000-0000
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Email:
xxxxx.xxxxxxxx@xxxx.xxx
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COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK
INTERNATIONAL”,
NEW YORK BRANCH
By_________________________
Name: Xxx
Xxxxxxxxxx
Title: Executive
Director
By_________________________
Name:
Title:
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Lending
Office for all Loans:
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000
Xxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Address
for Notices:
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000
Xxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention: Xxx
Xxxxxxxxxx
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Facsimile
No.: 000-000-0000
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Telephone
No.: 000-000-0000
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Email:
xxx.xxxxxxxxxx@xxxxxxxx.xxx
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BANKS
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FORTIS
CAPITAL CORP.
By /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx
Xxxxx
Title: Director
By /s/
Michiel V. M. Van Der Voort
Name: Michiel
V. M. Van Der Voort
Title: Managing
Director
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Lending
Office for all Loans:
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000
Xxxxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Address
for Notices:
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000
Xxxxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxxxx
Xxxxx
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Facsimile
No.: 000-000-0000
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Telephone
No.: 000-000-0000
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Email:
xxxxxxxx.xxxxx@xx.xxxxxx.xxx
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JPMORGAN
CHASE BANK, N.A., as Agent and as the Swing Line
Bank
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By
/s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx
X. XxXxxxx
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Vice
President
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Address
for Notices:
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JPMorgan
Chase Bank, N.A.
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1166
Avenue of the Xxxxxxxx, 00xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxxx
X. XxXxxxx
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Facsimile
No.: (000) 000-0000
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Telephone
No.: (000) 000-0000
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Email:
xxxxxxx.xxxxxxx@xxxxxxxx.xxx
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