AMENDMENT NO. 5
Exhibit 10.30
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0, dated as of June 30, 2008, 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 amended, 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. 5, 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. 5”
shall mean Amendment No. 5 to this Credit Agreement, dated as of June 30, 2008
among the Company, the Banks party thereto and the Agent.
2.02. Definition of “Imbali
Facility”. The definition of “Imbali Facility” in Section 1.01 of the
Credit Agreement (Definitions) shall be amended in its entirety to read as
follows:
“Imbali Facility”
shall mean Indebtedness of Imbali Metals Bvba consisting of a revolving working
capital facility provided by Fortis Bank S.A./N.V., New York Branch, in a
principal amount not to exceed €12,000,000 at any one time outstanding, that is
otherwise substantially on the terms set forth in the term sheet attached as
Exhibit A to Amendment No. 1 (except the maturity date shall be May 31, 2009),
and any renewal or extension of such revolving working capital facility (so long
as the terms and conditions thereof are substantially the same as set forth in
said term sheet).
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. 5
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
June 30, 2008 (the “Amendment Effective
Date”), upon the satisfaction of the following conditions:
(a) the
execution of this Amendment No. 5 by the Company, Banks constituting the
Required Banks and the Agent.
Section
5. Miscellaneous. Except
as herein provided, the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment No. 5 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. 5 by signing any such counterpart. This Amendment No. 5 shall be
governed by, and construed in accordance with, the law of the State of New
York.
EMPIRE
RESOURCES, INC.
|
|
By:/s/ Xxxxxx X.
Xxxx
|
|
|
Xxxxxx
X. Xxxx
|
|
|
Vice
President
|
NYDB01 17513634
JPMORGAN
CHASE BANK, N.A.,
as
Agent
|
|
By:/s/ X. X.
Xxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxx III
|
|
|
Vice
President
|
NYDB01 17513634
XXXXX
BROTHERS XXXXXXXX & CO.
|
|
By:
/s/ Xxxxxxx X.
Xxxxxxxx
|
|
|
Xxxxxxx
X. Xxxxxxxx
|
|
|
Senior
Vice President
|
NYDB01 17513634
CITICORP
USA, INC.
|
|
By:
|
|
|
Xxxx
X. Land
|
|
|
Vice
President
|
NYDB01 17513634
JPMORGAN
CHASE BANK, N.A.
|
|
By:
/s/ X. X.
Xxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxx III
|
|
|
Vice
President
|
NYDB01 17513634
COOPERATIVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK
BRANCH
|
|
By:
|
|
|
Xxx
Xxxxxxxxxx
|
|
|
Executive
Director
|
NYDB01 17513634
FORTIS
CAPITAL CORP.
|
|
By:
/s/ Xxxxxxxx
Xxxxx
|
|
|
Xxxxxxxx
Xxxxx
|
|
|
Director,
Fortis Capital Corp.
|
|
|
By:
/s/ Friso
Koopmans
|
|
|
Friso
Koopmans
|
|
|
Director,
Fortis Capital Corp.
|
NYDB01 17513634
