Exhibit 10.20
AMENDMENT NO. 6
AMENDMENT NO. 6, dated as of April 22, 2005 (this "Amendment"), 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 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.
6, terms defined in the Credit Agreement are used herein as defined therein.
Section 2. Amendment. Subject to the occurrence of the Amendment Effective
Date and effective on such date, the Credit Agreement shall be amended as
follows:
2.01. The second paragraph of the preamble shall be amended by replacing
the number "$75,000,000" therein with the number "$90,000,000".
2.02. Section 1.01 of the Credit Agreement shall be amended by inserting
the following definition in appropriate alphabetical order:
"Compliance Certificate" shall have the meaning assigned to such term
in the last sentence of Section 8.01 hereof.
2.03. The definition of "Applicable Margin" in Section 1.01 of the Credit
Agreement (Definitions) shall be amended in its entirety to read as follows:
"Applicable Margin" shall mean: (a) prior to April 22, 2005, (i) with
respect to Base Rate Loans, 1/2 of 1% per annum; and (ii) with respect
to Eurodollar Loans, 2% per annum and (b) thereafter, the applicable
percentage per annum set forth below:
Applicable Applicable
Margin for Base Margin For
Leverage Ratio Rate Loans Eurodollar Loans
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Greater than 5.50 to 1 0.75% 2.25%
Greater than or equal to 0.50% 2.00%
4.50 to 1 and less than
or equal to 5.50 to 1
Less than 4.50 to 1 0.25% 1.75%
The Leverage Ratio used to compute the Applicable Margin shall be the
Leverage Ratio set forth in the Compliance Certificate most recently
delivered by the Company to each Bank the last sentence of Section
8.01 hereof. Changes in the Applicable Margin resulting from a change
in the Leverage Ratio shall become effective on the second day
following delivery by the Company to the Banks of a new Compliance
Certificate pursuant to the last sentence of Section 8.01 hereof. If
the Company shall fail to deliver a Compliance Certificate within the
time required pursuant to the last sentence of Section 8.01 hereof
(without giving effect to any grace period), the Applicable Margin
from and including the first day after the date on which such
Compliance Certificate was required to be delivered to the date the
Company delivers to the Banks the next Compliance Certificate shall
conclusively equal the highest Applicable Margin set forth above.
2.04. The definition of "Borrowing Base" in Section 1.01 of the Credit
Agreement (Definitions) shall be amended as follows:
(a) clause (f) in the definition of "Borrowing Base" shall be amended
by deleting the contained therein and inserting the following text in lieu
thereof:
75% of the aggregate value of Eligible Warehouse Inventory at
said date, provided, that in no event shall the portion of the
Borrowing Base attributable to Eligible Warehouse Inventory
exceed 40% of the Borrowing Base, plus
(b) the following clause (g) shall be inserted immediately after
clause (f) therein and the remaining clauses shall be re-lettered
accordingly:
(g) without duplication clauses (e) and (f) above, 60% of the
aggregate amount of unsold aluminum billet, provided
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that in no event shall the aggregate amount of unsold aluminum
billet exceed $2,000,000, plus
2.05. The definition of "Commitment" in Section 1.01 of the Credit
Agreement (Definitions) shall be amended by replacing the number "$75,000,000"
therein with the number "$90,000,000".
2.06. The definition of "Loan Commitment Sub-limit" in Section 1.01 of the
Credit Agreement (Definitions) shall be amended by replacing the number
"$65,000,000" therein with the number "$80,000,000".
2.07. Section 2.06 of the Credit Agreement (Commitment Fee) shall be
amended by replacing the number "$75,000,000" therein with the number
"$90,000,000".
2.08. Section 8.01 of the Credit Agreement (Financial Statements Etc.)
shall be amended by inserting the text "(the "Compliance Certificate") in the
last sentence of such Section immediately following the text "a certificate of a
senior financial officer of the Company" contained therein.
2.09. Section 8.09 of the Credit Agreement (Leverage Ratio) shall be
amended in its entirety to read as follows:
8.09 Leverage Ratio. The Company will not permit the Leverage Ratio to
exceed (a) at any time during the period commencing on the Closing
Date and ending on September 30, 2001, 6.00 to 1, (b) at any time
during the period commencing on October 1, 2001 and ending on April
21, 2005, 5.00 to 1, (c) at any time during the period commencing on
April 22, 2005 and ending on December 30, 2005, 6.50 to 1, (d) at any
time during the period commencing on December 31, 2005 and ending on
March 30, 2006, 5.75 to 1 and (e) at any time thereafter, 5.25 to 1.
2.10. Section 8.11 of the Credit Agreement (Working Capital Ratio) shall be
amended in its entirety to read as follows:
8.11 Working Capital Ratio. The Company will not permit the Working
Capital Ratio to be greater than (a) at any time during the period
commencing on the Closing Date and ending on September 30, 2001, 7.00
to 1, (b) at any time during the period commencing on October 1, 2001
and ending on April 21, 2005, 6.00 to 1, (c) at any time during the
period commencing on April 22, 2005 and ending on December 30, 2005,
7.00 to 1, (d) at any time during the period commencing on December
31, 2005 and ending on March 30, 2006, 6.50 to 1 and (e) at any time
thereafter, 6.25 to 1.
2.11 The Credit Agreement is hereby amended by (x) deleting the "Schedule
IV" thereto and (y) inserting a new "Schedule IV" thereto identical to Schedule
I hereto.
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2.12. The Credit Agreement is hereby amended by (x) deleting the "Exhibit
B" thereto and (y) inserting a new "Exhibit B" thereto identical to Exhibit A
hereto.
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 the 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. 6, 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. Notes. With respect to each Commitment that is increased
pursuant to this Amendment No. 6, the Company agrees to execute and deliver a
Note to each Bank that has such a Commitment and that requests a Note reflecting
the increase in such Commitment upon delivery to the Company by each such Bank
of the Note previously issued to each such Bank by the Company.
Section 5. 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 April 22, 2005 (the "Amendment Effective Date"), upon (i) the
execution of this Amendment No. 6 by the Company, each of the Banks and the
Agent, (ii) the delivery by the Company of board of director resolutions
approving this Amendment No. 6 and the transactions contemplated herein, in form
and substance satisfactory to the Agent and (iii) the payment by the Company of
all fees and expenses due and owing on such date.
Section 6. Miscellaneous. Except as herein provided, the Credit Agreement
shall remain unchanged and in full force and effect. This Amendment No. 6 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. 6 by signing any such counterpart. This Amendment
No. 6 shall be governed by, and construed in accordance with, the law of the
State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6 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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Name: Sandra R. Kahn
Title: Vice President
[EMPIRE AMENDMENT NO. 6]
JPMORGAN CHASE BANK, N.A., as Agent
By: /s/ Thomas S. Drake
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Name: Thomas S. Drake
Title: Vice President
[EMPIRE AMENDMENT NO. 6]
BROWN BROTHERS HARRIMAN & CO.
By: /s/ John C. Santos, Jr.
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Name: John C. Santos, Jr.
Title: Managing Director
[EMPIRE AMENDMENT NO. 6]
CITICORP USA, INC.
By: /s/ Keith Pallmann
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Name: Keith Pallmann
Title: Vice President
[EMPIRE AMENDMENT NO. 6]
JPMORGAN CHASE BANK, N.A.
By: /s/ Thomas S. Drake
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Name: Thomas S. Drake
Title: Vice President
[EMPIRE AMENDMENT NO. 6]
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By: /s/ Brett Delfino
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Name: Brett Delfino
Title: Executive Director
By: /s/ Michelle Ruocco
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Name: Michelle Ruocco
Title: Vice President
[EMPIRE AMENDMENT NO. 6]
SCHEDULE I
SCHEDULE IV
Commitments
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Bank Commitment
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JPMorgan Chase Bank, N.A. $35,000,000
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Citicorp USA, Inc. $23,000,000
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Brown Brothers Harriman & Co. $15,000,000
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Cooperatieve Centrale $17,000,000
Raiffeisen-Boerenleenbank B.A., "Rabobank
International", New York Branch
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