EMPIRE RESOURCES, INC.
AMENDMENT NO. 2
AMENDMENT NO. 2, dated as of May 8, 2003, 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, 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 a Credit Agreement,
dated as of December 21, 2000 (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. Amendment. Subject to the satisfaction of the conditions
precedent set forth in Section 4 hereof, but effective as of the date hereof,
the Credit Agreement shall be amended as follows:
2.01. Section 2.03 of the Credit Agreement (Letters of Credit) shall be
amended by replacing clause (iii) in the first sentence of said Section with the
following:
"(iii) the expiration date of any Letter of Credit extend beyond the
following respective dates:
(x) in the case of any sight or time letter of credit, the
earlier of August 31, 2003 and the date 180 days following the
issuance thereof (but only so long as the aggregate face amount of all
such letters of credit that have an expiration date after the
Revolving Credit Commitment Termination Date does not exceed
$6,500,000), and
(y) in the case of any other Letter of Credit, the Revolving
Credit Commitment Termination Date."
2.02. Section 2.03(c) of the Credit Agreement (Option to Borrow to Pay
Reimbursement Obligations) shall be amended by replacing the word "Forthwith" at
the beginning of the section with the following:
"Except with respect to any Letter of Credit that is drawn upon after
the Revolving Credit Commitment Termination Date, forthwith"
Section 3. Representations and Warranties. The Company represents and
warrants to the Banks that the representations and warranties set forth in
Section 7 of the Credit 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) to the
extent of changes in the ordinary course of business that singly or in the
aggregate are not materially adverse, (ii) changes resulting from transactions
contemplated by or permitted by the Credit Agreement, and (iii)
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EMPIRE RESOURCES, INC.
those applicable to a specific date or period.
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 the date hereof, upon the execution of this Amendment by the
Company, each of the 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. 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.
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EMPIRE RESOURCES, INC.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be duly executed and delivered as of the day and year first above written.
EMPIRE RESOURCES, INC.
By /s/ Sandra R. Kahn
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Sandra R. Kahn
Vice President
JPMORGAN CHASE BANK
By /s/ Thomas S. Drake
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Thomas S. Drake
Vice President
STANDARD CHARTERED BANK
By /s/ Guan Liu Lee
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Name: Guan Liu Lee
Title: Portfolio Management Americas
By /s/ Robert Reddington
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Name: Robert Reddington
Title: AVP/ Credit Documentation
CITICORP USA, INC.
By /s/ Mitch Palminteri
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Name: Mitch Palminteri
Title: Vice President
JPMORGAN CHASE BANK,
as Agent
By /s/ Thomas S. Drake
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Thomas S. Drake
Vice President
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