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AMENDMENT NO. 1
to
LOAN AGREEMENT
This AMENDMENT NO. 1 dated as of December 23, 1999 (this "Amendment"),
is between Empire Resources, Inc. (the "Company"), a Delaware corporation and
the surviving company of the merger of Empire Resources, Inc. with and into
Integrated Technology USA, Inc., Fleet Bank N.A. ("Fleet"), Citicorp USA, Inc.
("Citicorp;" Fleet and Citicorp are collectively referred to herein as the
"Banks"), and Fleet as agent for the Banks (in such capacity, the "Agent").
RECITALS:
A. The Company, the Banks and the Agent have entered into a Credit
Agreement, dated as of May 20, 1999 (the "Loan Agreement").
B. Effective September 17, 1999 Empire resources, Inc. ("Old Empire")
was merged with and into Integrated Technology USA, Inc., a Delaware corporation
("Integrated") and Integrated changed its name to Empire Resources, Inc.
C. The Company, the Agent and the Banks entered into an Assumption
Agreement dated as of October 14, 1999 pursuant to which the Company, among
other things, assumed all of Old Empire's obligations under the Loan Agreement.
D. The Company desires to increase the Commitment (as defined in the
Loan Agreement referred to below), but solely as same relates to Letters of
Credit and the Agent and the Banks are agreeable to same.
E. The Company and the Banks desire to amend certain other provisions
of the Loan Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration whose receipt and sufficiency are acknowledged, the
Company, the Banks and the Agent agree as follows:
Section 1. Definitions. Each capitalized term used but not defined in
this Amendment shall have the meaning ascribed to such term in the
Loan Agreement.
Section 2. Amendments of Loan Agreement.
(a) A new definition for "Amendment No. 1" shall be added to Section
1.01 of the Loan Agreement in its correct alphabetical order to read in its
entirety as follows:
"Amendment No. 1" shall mean that certain Amendment No. 1 to
this Agreement dated as of December 23, 1999 among the parties thereto.
(b) The definition for "Commitment" contained in Section 1.01 of the
Loan Agreement is amended to read in its entirety as follows:
"Commitment" shall mean (A) the F/X Indemnity Commitments and
(B) the obligation of the Banks to make Loans, and to buy
participations in Letters of Credit and Acceptances issued or created
by the Issuing Bank or the Accepting Bank, as the case may be and the
obligation of the Issuing Bank to issue Letters of Credit and of the
Accepting Bank to create Acceptances in an aggregate amount equal to
$45,000,000, as the same may be reduced from time to time pursuant to
Section 2.05 hereof. As to each Bank, the obligation of such Bank to
make Loans, and to buy participations in Letters of Credit and
Acceptances issued or created by the Issuing Bank or the Accepting
Bank, as the case may be, under the Commitment shall be in an aggregate
principal or face amount at any one time outstanding up to but not
exceeding, the amount set opposite such Bank's name on the signature
pages to Amendment No. 1 under the caption "Commitment" (as the same
may be reduced from time to time pursuant to Section 2.05 hereof);
provided, that, the Commitment shall be further subject to the sublimit
limitations set forth in this Agreement.
(c) A new definition for "Balance Sheet Leverage Ratio" shall be added
to Section 1.01 of the Loan Agreement in its correct alphabetical order to read
in its entirety as follows:
"Balance Sheet Leverage Ratio" shall mean, at any time, the
ratio of (a) Total Liabilities at such time minus the then face amount
of letters of credit or similar instruments issued or accepted by banks
and other financial institutions for the account of the Company minus
the amount of Subordinated Debt at such time to (b) Tangible Net Worth
of the Company at such time.
(d) The definition for "Tier I Commitment" contained in Section 1.01 of
the Loan Agreement is amended to read in its entirety as follows:
"Tier I Commitment" shall mean (A) the F/X Indemnity
Commitments and (B) the obligation of the Banks to make Tier I Loans,
and to buy participations in Letters of Credit and Acceptances issued
or created by the Issuing Bank or the Accepting Bank, as the case may
be and the obligation of the Issuing Bank to issue Letters of Credit
and of the Accepting Bank to create Acceptances in an aggregate amount
equal to $45,000,000, as such amount may be reduced from time to time
pursuant to Section 2.05 hereof, and which may be used by the Company
in the form of Loans up to and not exceeding the sum of $30,000,000,
the total amount of which may be used by the Company for trade Letters
of Credit and Acceptances and $2,000,000 of which may be used by the
Company for standby Letters of Credit, all as more fully set forth in
this Agreement and subject to the Borrowing Base limitations of this
Agreement.
(e) The definition for "Tier I Credits" contained in Section 1.01 of
the Loan Agreement is amended to read in its entirety as follows:
"Tier I Credits" shall mean each of the following
independently: (i) all Credits, at any time, in an aggregate
outstanding amount up to and including the first $45,000,000 of
outstanding Credits and (ii) all Tier I Loans.
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(f) The introductory paragraph of Section 2.03 of the Loan Agreement is
amended to read in its entirety as follows:
2.03 Letters of Credit. Subject to the terms and conditions of
this Agreement, the Commitments may be utilized, upon the request of
the Company, in addition to the Loans provided for by Section 2.01
hereof, by the issuance by the Issuing Bank of letters of credit and
the Letter of Indemnity (such letters of credit and the Letter of
Indemnity are collectively referred to herein as, "Letters of Credit")
for account of the Company, provided that in no event shall (i) the
aggregate amount of all Letter of Credit Liabilities, together with the
aggregate principal amount of the Loans and the aggregate amount of
Acceptance Liabilities exceed the aggregate amount of the Commitments
as in effect from time to time, (ii) the outstanding aggregate amount
of all Letter of Credit Liabilities arising out of performance or
standby Letters of Credit exceed $2,000,000, (iii) the aggregate amount
of all Letter of Credit Liabilities arising out of commercial
(documentary) Letters of Credit (whether issued by Fleet or arising out
of the Letter of Indemnity) exceed $45,000,000, (iv) the expiration
date of any standby Letter of Credit extend beyond the Revolving Credit
Commitment Termination Date and/or (v) the expiration date of any sight
or time commercial Letter of Credit extend beyond the earlier to occur
of the date 180 days following the issuance of such Letters of Credit
and the date 180 days following the Revolving Credit Commitment
Termination Date. The following additional provisions shall apply to
Letters of Credit:
(g) Section 8.09 of the Loan Agreement is amended to read in its
entirety as follows:
8.09 Leverage Ratio; Balance Sheet Leverage Ratio. The Company
will not permit (i) the Leverage Ratio to exceed 5.5 to 1 at any time
or (ii) the Balance Sheet Leverage Ratio to exceed 4.5 to 1 at any
time.
(h) Section 8.11 of the Loan Agreement is amended to read in its
entirety as follows:
8.11 Working Capital Ratio. The Company will not permit the
Working Capital Ratio to be greater than 5.5 to 1 at any time.
Section 3. Conforming Amendments. The Loan Agreement and all
agreements, instruments and documents executed and delivered pursuant to or in
connection with the Loan Agreement (collectively the "Loan Documents") , shall
each be deemed to be amended and supplemented hereby to the extent necessary, if
any, to give effect to the provisions of this Amendment, and each Bank is
authorized to annex a copy of this Amendment to its respective Note. Except as
so amended hereby, the Loan Agreement and the other Loan Documents shall remain
in full force and effect in accordance with their respective terms.
Section 4. Acknowledgments, Confirmations and Consent.
The Company acknowledges and confirms that the Liens granted pursuant
to the Security Documents to which it is a party secure the indebtedness,
liabilities and obligations of the Company to the Banks, the Issuing Bank and/or
the Agent under the Notes and under the Loan Agreement as further amended by
this Amendment, whether or
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not so stated in such Security Documents, and that the term "Borrower
Obligations" as used in the Security Documents (or any other terms used in any
of the Loan Documents to describe or refer to the indebtedness, liabilities and
obligations of the Company to the Banks, the Issuing Bank and/or the Agent)
includes all other indebtedness, liabilities and obligations of the Company
under the Loan Agreement as amended by this Amendment and under the Notes.
Section 5. Representations and Warranties. The Company represents and
warrants to the Banks and the Agent as follows:
(a) After giving effect to this Amendment (i) each of the
representations and warranties set forth in Section 7 of the Loan Agreement is
true and correct in all respects as if made on the date of this Amendment,
except for changes in the ordinary course of business which, either singly or in
the aggregate, are not materially adverse to the business or financial condition
of the Company, and (ii) no Default or Event of Default exists under the Loan
Agreement.
(b) The Company has the power to execute, deliver and perform, and has
taken all necessary corporate action to authorize the execution, delivery and
performance of, this Amendment and the other agreements, instruments and
documents to be executed by it in connection with this Amendment. No consent or
approval of any Person, no consent or approval of any landlord or mortgagee, no
waiver of any Lien or right of distraint or other similar right and no consent,
license, certificate of need, approval, authorization or declaration of, or
filing with, any governmental authority, bureau or agency is or will be required
in connection with the execution, delivery or performance by the Company, or the
validity, enforcement or priority, of this Amendment and the other agreements,
instruments and documents executed in connection with this Amendment.
(c) The execution, delivery and performance by the Company of this
Amendment and each of the agreements, instruments and documents executed in
connection with this Amendment to which it is a party will not (i) violate any
provision of law, (ii) conflict with or result in a breach of any order, writ,
injunction, ordinance, resolution, decree or other similar document or
instrument of any court or governmental authority, bureau or agency, domestic or
foreign, or the certificate of incorporation or by-laws of the Company, (iii)
create (with or without the giving of notice or lapse of time, or both) a
default under or breach of any agreement, bond, note or indenture to which the
Company is a party or by which any of them is bound or any of their respective
properties or assets is affected, or (iv) result in the imposition of any Lien
of any nature whatsoever upon any of the properties or assets owned by or used
in connection with the business of the Company, except for the Liens created and
granted pursuant to the Security Documents.
(d) This Amendment and each of the other agreements, instruments and
documents executed in connection with this Amendment to which the Company is a
party
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has been duly executed and delivered by the Company and constitutes the valid
and legally binding obligation of the Company, enforceable in accordance with
its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws, now or hereafter
in effect, relating to or affecting the enforcement of creditors' rights
generally and except that the remedy of specific performance and other equitable
remedies are subject to judicial discretion; provided, however, that such laws
shall not materially interfere with the practical realization of the benefits of
the Security Documents or the Liens created thereby, except for: (i) possible
delay, (ii) situations which may arise under Chapter II of the U.S. Bankruptcy
Code, II U.S.C. xx.xx. 10 1 et seq., and (iii) equitable orders of any United
States Bankruptcy Court.
Section 6. Fees. The Company shall pay an Administrative Fee to Fleet
in the amount of $6,375 and to Citicorp in the amount of $6,125, (each such fee
representing .125% of such Bank's pro rata share of the increase to the total
Commitment). Each such fee shall be paid directly to the Bank that is to receive
such fee.
Section 7. Miscellaneous.
(a) Except as specifically amended by this Amendment, the Loan
Agreement and each of the other agreements, instruments and documents executed
in connection with the Loan Agreement shall remain in full force and effect in
accordance with their respective terms.
(b) THIS AMENDMENT AND ALL OTHER AGREEMENTS, DOCUMENTS AND INSTRUMENTS
EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED IN AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK
BY RESIDENTS OF SUCH STATE.
(c) The provisions of this Amendment are severable, and if any clause
or provision shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause, provision or part in such jurisdiction and shall not in any manner
affect such clause, provision or part in any other jurisdiction or any other
clause or provision in this Amendment in any jurisdiction.
(d) This Amendment may be signed in any number of counterparts with the
same effect as if all parties to this Amendment signed the same counterpart.
(e) This Amendment shall be binding upon and inure to the benefit of
the Company and its respective successors and to the benefit of the Agent and/or
the Banks and their respective successors and assigns. The rights and
obligations of the Company under this Amendment shall not be assigned or
delegated without the prior written
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consent of the Banks, and any purported assignment or delegation without such
consent shall be void.
(f) The Company agrees to pay the Agent upon demand all reasonable
expenses, including reasonable fees of attorneys and paralegals for the Agent
(who may be employees of the Agent), incurred by the Agent in connection with
the preparation, negotiation and execution of this Amendment and any agreements,
instruments and documents executed or furnished in connection with this
Amendment.
Section 8. Effectiveness of Amendment. This Amendment shall become
effective (the "Effective Date") upon the later of (i) receipt by the Agent of
this Amendment duly executed by each party hereto and (ii) receipt by the Agent
and each Bank of such evidence of proper corporate organization, existence,
authority and appropriate corporate proceedings with respect to Company and the
matters addressed by this Amendment and the documents, instruments and
agreements executed pursuant hereto or in connection herewith, and such other
certificates, instruments, and documents as the Agent or any Bank shall
reasonably request.
[signature pages follow]
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IN WITNESS WHEREOF, the Company, the Banks and the Agent have signed
and delivered this Amendment No. 1 as of the date fast written above.
EMPIRE RESOURCES, INC.,
as Borrower
By /s/ Xxxxxx Xxxx
---------------------------
Name: Xxxxxx Xxxx
Title: Vice President & C.F.O.
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Commitment FLEET BANK, as Agent and a Bank
----------
$22,950,000
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: Vice President
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Commitment CITICORP USA, INC., as a Bank
----------
$22,050,000
By /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
