Exhibit 10.55
[Execution]
AMENDMENT NO. 15 TO AMENDED AND
RESTATED LOAN AGREEMENT
This AMENDMENT NO. 15 TO AMENDED AND
RESTATED LOAN AGREEMENT (this “Amendment”), dated as of
December 17, 2008, is entered into by and among Wise Alloys
LLC, a Delaware limited liability company (“Alloys”),
Wise Recycling, LLC, a Maryland limited liability company
(“Recycling” and together with Alloys, each
individually a “Borrower” and collectively,
“Borrowers”), Wise Metals Group LLC, a Delaware limited
liability company (“Group”), Wise Alloys Finance
Corporation, a Delaware corporation (“Finance”),
Listerhill Total Maintenance Center LLC, a Delaware limited
liability company (“Listerhill”), Wise Warehousing,
LLC, a Delaware limited liability company
(“Warehousing”), Wise Recycling Texas, LLC, a Delaware
limited liability company (“Recycling Texas”), Wise
Recycling West, LLC, a Delaware limited liability company
(“Recycling West” and together with Group, Finance,
Listerhill, Warehousing and Recycling Texas, each individually a
“Guarantor” and collectively,
“Guarantors”), the lenders from time to time party
thereto, and Wachovia Bank, National Association, successor by
merger to Congress Financial Corporation, in its capacity as
administrative agent (in such capacity, “Agent”) for
Lenders (as hereinafter defined).
WITNESSETH
:
WHEREAS, Agent and the financial
institutions from time to time parties to the Loan Agreement (as
hereinafter defined) as lenders (each individually, a
“Lender” and collectively, “Lenders”) have
entered into financing arrangements with Borrowers pursuant to
which Agent and Lenders have made and provided and hereafter may
make and provide, upon certain terms and conditions, loans and
advances and other financial accommodations to Borrowers as set
forth in the Amended and Restated Loan Agreement, dated May 5,
2004, by and among Agent, Lenders, Borrowers and Guarantors, as
amended by Amendment No. 1 to Amended and Restated Loan
Agreement, dated as of June 30, 2004, Amendment No. 2 to
Amended and Restated Loan Agreement, dated as of November 10,
2004, Amendment No. 3 and Waiver to Amended and Restated Loan
Agreement, dated as of March 21, 2005, Amendment No. 4 to
Amended and Restated Loan Agreement, dated as of October 31,
2005, Amendment No. 5 to Amended and Restated Loan Agreement,
dated as of March 3, 2006, Amendment No. 6 to Amended and
Restated Loan Agreement, dated as of March 31, 2006, Amendment
No. 7 to Amended and Restated Loan Agreement, dated as of
April 28, 2006, Amendment No. 8 to Amended and Restated
Loan Agreement, dated as of June 12, 2006, Amendment
No. 9 and Waiver to Amended and Restated Loan Agreement, dated
as of August 4, 2006, Amendment No. 10 to Amended and
Restated Loan Agreement, dated as of December 31, 2006,
Amendment No. 11 to Amended and Restated Loan Agreement, dated
as of July 31, 2007, Amendment No. 12 to Amended and
Restated Loan Agreement, dated as of February 25, 2008,
Amendment No. 13 and Waiver to Amended and Restated Loan
Agreement, dated as of April 25, 2008, and Amendment
No. 14 to Amended and Restated Loan Agreement, dated as of
October 8, 2008 (as the same now exists and may hereafter be
amended, modified, supplemented, extended, renewed, restated or
replaced, the “Loan Agreement”) and the other
agreements, documents and instruments referred to therein or any
time executed and/or delivered in connection therewith or related
thereto, including this Amendment (all of the foregoing, together
with the Loan Agreement, as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the
“Financing Agreements”);
WHEREAS, Borrowers have requested
that Agent and Lenders agree to make certain amendments to the Loan
Agreement, and Agent and Lenders are willing to agree to such
requests, subject to the terms and conditions contained
herein;
WHEREAS, the parties hereto desire
to enter into this Amendment to evidence and effectuate such
amendments, subject to the terms and conditions and to the extent
set forth herein;
NOW, THEREFORE, in consideration of
the premises and covenants set forth herein and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as
follows:
1. Definitions .
(a) Additional Definitions .
As used herein, the following terms shall have the meanings given
to them below and the Loan Agreement shall be deemed and is hereby
amended to include, in addition and not in limitation, the
following definitions:
(i) “Amendment
No. 15” shall mean Amendment No. 15 to Amended and
Restated Loan Agreement, dated as of December 17, 2008, among
Agent, Lenders, Borrowers and Guarantors, as the same now exists
and may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced.
(ii) “Amendment No. 15
Effective Date” shall mean the first date on which all of the
conditions precedent to the effectiveness of Amendment No. 15
shall have been satisfied or shall have been waived by
Agent.
(iii) “Special Availability
Reserve” shall mean the special Reserve which shall be
established by Agent on the Amendment No. 15 Effective Date
reducing the amount of Loans and Letter of Credit Accommodations
which would otherwise be available to Borrowers in the amount of
$20,000,000; provided, that, following the receipt by Agent, in
form and substance satisfactory to Agent, of the Fiscal Year 2009
Projections (as defined in Amendment No. 15), the amount of
such Reserve shall be reduced to $0 upon the effective date of an
amendment to this Agreement, duly authorized, executed and
delivered by Borrowers, Guarantors, Agent and the Required Lenders,
providing for modifications to Section 9.17 hereof based on
such Fiscal Year 2009 Projections.
(iv) “Tranche D
Commitment” shall mean, at any time, as to each Tranche D
Lender, the principal amount set forth next to such Tranche D
Lender’s name on Schedule 1.27 hereto designated as the
Tranche D Commitment of such Tranche D Lender or on Schedule 1 to
the Assignment and Acceptance Agreement pursuant to which such
Tranche D Lender became a Tranche D Lender hereunder in accordance
with the provisions of Section 13.7 hereof, as the same may be
adjusted from time to time in accordance with the terms hereof;
sometimes being collectively referred to herein as “Tranche D
Commitments”.
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(v) “Tranche D Lenders”
shall mean, collectively, the Lenders having a Tranche D Commitment
or all or a portion of the Tranche D Loan owing to it; each
sometimes being referred to herein individually as a “Tranche
D Lender”; provided , that , each Tranche D
Lender that is an Equity Affiliated Lender shall have no right
whatsoever (a) to consent to any amendment, modification,
waiver, consent or other such action with respect to any of the
terms of this Agreement or any of the other Financing Agreements,
except as set forth in Sections 11.3(a)(i) through
(viii) hereof, (b) to vote on any other matter related to
this Agreement or any of the other Financing Agreements, except as
set forth in Sections 11.3(a)(i) through (viii) hereof,
(c) to require Agent or any Lender to undertake any action (or
refrain from taking any action) with respect to this Agreement, any
of the other Financing Agreements or the Collateral, or (d) to
attend any meeting with Agent or any Lender or receive any
information from Agent or any Lender to the extent that Agent
determines that the attendance by such Tranche D Lender at such
meeting or the receipt of such information by such Tranche D Lender
either (i) could reasonably be expected to represent a
conflict of interest between such Tranche D Lender in its capacity
as a Lender and in its capacity as an Affiliate of any Borrower,
Guarantor or Permitted Holder or (ii) could reasonably be
expected to be adverse to the interests of Agent or any Lender
(other than such Tranche D Lender); each sometimes being referred
to herein individually as a “Tranche D
Lender”.
(vi) “Tranche D Loan”
shall mean the term loan in the principal amount of $50,000,000
made by Tranche D Lenders to Borrowers on the Amendment No. 15
Effective Date as set forth in
Section 2.1(i) hereof.
(b) Amendments to Definitions
.
(i) Adjusted Loan Limit . The
definition of “Adjusted Loan Limit” in the Loan
Agreement is hereby amended by deleting such definition in its
entirety and replacing it with the following:
“ ‘Adjusted Loan
Limit’ shall mean, on any date, the amount equal to the
lesser of (a) $228,000,000, (b) the amount of the
aggregate Borrowing Bases of all Borrowers on such date and
(c) the sum of (i) the amount of the Eligible Working
Capital on such date, plus (ii) the amount of the
Eligible Working Capital Variance on such date.”
(ii) Commitment . The
definition of “Commitment” in Section 1.27 of the
Loan Agreement is hereby amended by deleting such definition in its
entirety and replacing it with the following:
“1.27
‘Commitments’ shall mean, collectively, the Tranche A
Commitments, the Tranche B Commitments, the Tranche C Commitments
and the Tranche D Commitments; sometimes being individually
referred to herein as a ‘Commitment’.”
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(iii) Interest Rate . The
definition of “Interest Rate” in Section 1.73 of
the Loan Agreement is hereby amended by deleting such definition in
its entirety and replacing it with the following:
“1.73 ‘Interest
Rate’ shall mean:
(a) Subject to clause (b) of
this definition below:
(i) as to Loans (other than the
Tranche D Loan) which are Prime Rate Loans, a rate equal to the
Applicable Margin on a per annum basis in excess of the Prime
Rate;
(ii) as to Loans (other than the
Tranche D Loan) which are Eurodollar Rate Loans, a rate equal to
the Applicable Margin on a per annum basis in excess of the
Adjusted Eurodollar Rate (based on the Eurodollar Rate applicable
for the Interest Period selected by a Borrower, or by
Administrative Borrower on behalf of such Borrower, as in effect
three (3) Business Days after the date of receipt by Agent of
the request of such Borrower for such Eurodollar Rate Loans in
accordance with the terms hereof, whether such rate is higher or
lower than any rate previously quoted to any Borrower or
Guarantor); and
(iii) as to the Tranche D Loan, a
rate equal to ten (10%) percent per annum.
(b) Notwithstanding anything to the
contrary contained in clause (a) of this definition, the
Applicable Margin otherwise used to calculate the Interest Rate for
Loans (other than the Tranche D Loan) shall be the highest
percentage set forth in the definition of the term Applicable
Margin for each category of Loans (other than the Tranche D Loan),
without regard to the amount of EBITDA of Group and its
Subsidiaries, plus two (2%) percent per annum, and the
Interest Rate with respect to the Tranche D Loan shall mean the
rate of twelve (12%) percent per annum, in each case at
Agent’s option, without notice (i) either (A) for
the period on and after the effective date of termination or
non-renewal hereof until such time as all Obligations are
indefeasibly paid and satisfied in full in immediately available
funds, or (B) for the period from and after the date of the
occurrence of any Event of Default, and for so long as such Event
of Default is continuing as determined by Agent in good faith, and
(ii) on the Revolving Loans to any Borrower at any time
outstanding in excess of the Borrowing Base of such Borrower or the
Revolving Loan Limit of such Borrower (whether or not such
excess(es) arise or are made with or without the knowledge or
consent of Agent or any Lender and whether made before or after an
Event of Default).”
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(iv) Inventory Loan Limit .
The definition of “Inventory Loan Limit” in
Section 1.75 of the Loan Agreement is hereby amended by
deleting such definition in its entirety and replacing it with the
following:
“1.75 ‘Inventory Loan
Limit’ shall mean, as to each Borrower, at any time, the
amount equal to $150,000,000, minus the then outstanding principal
amount of Revolving Loans to the other Borrowers (and including
Letter of Credit Accommodations to the extent provided in the
definition of the term Borrowing Base) based on Eligible
Inventory.”
(v) Loans . The definition of
“Loans” in Section 1.81 of the Loan Agreement is
hereby amended by deleting such definition in its entirety and
replacing it with the following:
“ ‘Loans’ shall
mean, collectively, the Tranche A Loans, the Tranche B Loans, the
Tranche C Loan and the Tranche D Loan.”
(vi) Prime Rate . The
definition of “Prime Rate” in Section 1.99 of the
Loan Agreement is hereby amended by deleting such definition in its
entirety and replacing it with the following:
“1.99 ‘Prime Rate’
shall mean, on any date, the greater of (a) the rate from time
to time publicly announced by Wachovia Bank, National Association,
or its successors, as its prime rate, whether or not such announced
rate is the best rate available at such bank or (b) the
Adjusted Eurodollar Rate for a one (1) month Interest Period
on such date plus two (2%) percent.”
(vii) Pro Rata Share . The
definition of “Pro Rata Share” in Section 1.101 of
the Loan Agreement is hereby amended by deleting clause (d) of
such definition in its entirety and replacing it with the
following:
“(d) with respect to a Tranche
D Lender’s obligation to make the Tranche D Loan and receive
payments of interest, fees, and principal with respect thereto, the
fraction (expressed as a percentage) the numerator of which is such
Tranche D Lender’s Tranche D Commitment and the denominator
of which is the aggregate amount of all of the Tranche D
Commitments of the Tranche D Lenders, as adjusted from time to time
in accordance with the provisions hereof; provided ,
that , if the Tranche D Commitments have been terminated,
the numerator shall be the unpaid amount of the Tranche D Loan
owing to such Tranche D Lender and the denominator shall be the
aggregate unpaid amount of the Tranche D Loan; and
(e) with respect to all other
matters (including, without limitation, Special Agent Advances and
the indemnification obligations arising under Section 11.5
hereof), at any time as to any Lender, the fraction (expressed as a
percentage) the numerator of which is such Lender’s
Commitment (provided, that, if the
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Commitments have been terminated,
the numerator shall be the unpaid amount of such Lender’s
Loans and its interest in Special Agent Advances and Letter of
Credit Accommodations) and the denominator of which shall be the
amount equal to the Commitments, as adjusted from time to time in
accordance with the provisions hereof (provided, that, if the
Commitments have been terminated, the denominator shall be the
aggregate amount of all unpaid Loans, Special Agent Advances and
Letter of Credit Accommodations).”
(viii) Required Lenders . The
definition of “Required Lenders” in Section 1.113
of the Loan Agreement is hereby amended by deleting such definition
in its entirety and replacing it with the following:
“1.113
‘Required Lenders’ shall mean, at any time, those
Lenders (other than Equity Affiliated Lenders, Tranche C Lenders
and Tranche D Lenders) whose Pro Rata Shares aggregate sixty-six
and two-thirds (66 2 / 3 %) percent or more of the
aggregate of the Commitments of all Lenders (other than Equity
Affiliated Lenders, Tranche C Lenders and Tranche D Lenders), or if
the Commitments shall have been terminated or reduced to zero,
Lenders (other than Equity Affiliated Lenders, Tranche C Lenders
and Tranche D Lenders) to whom at least sixty-six and two-thirds
(66 2
/
3 %) percent of the then
outstanding Obligations (other than Obligations in respect of the
Tranche B Loans, the Tranche C Loan and the Tranche D Loan) are
owing,”
(ix) Reserves . The
definition of “Reserves” in Section 1.114 of the
Loan Agreement is hereby amended by inserting the following
immediately prior to the period at the end of the first sentence of
such definition:
“or (e) to reflect the
Special Availability Reserve”.
(x) Revolving Loan Limit .
The definition of “Revolving Loan Limit” in the Loan
Agreement is hereby amended by deleting such definition in its
entirety and replacing it with the following:
“ ‘Revolving Loan
Limit’ shall mean, as to each Borrower, the amount equal to
(a) the lesser of (i) $228,000,000 and (ii) the
Eligible Working Capital minus (b) the then outstanding
principal amount of the Revolving Loans and Letter of Credit
Accommodations provided to the other Borrowers.”
(xi) Tranche B Loan Limit .
The definition of “Tranche B Loan Limit” in the Loan
Agreement is hereby amended by deleting such definition in its
entirety and replacing it with the following:
“ ‘Tranche B Loan
Limit’ shall mean, as to each Borrower, the amount equal to
$46,000,000, minus the then outstanding principal amount of the
Tranche B Loans provided to the other Borrowers.”
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(xii) Work-in-Process
Sublimit . The definition of “Work-in-Process
Sublimit” in the Loan Agreement is hereby amended by deleting
such definition in its entirety and replacing it with the
following:
“ ‘Work-in-Process
Sublimit’ shall mean, as to each Borrower, at any time, the
amount equal to $65,000,000, minus the then outstanding principal
amount of Revolving Loans to the other Borrowers (and including
Letter of Credit Accommodations to the extent provided in the
definition of the term Borrowing Base) based on Eligible Inventory
consisting of work-in-process for finished goods.”
(c) Interpretation .
Capitalized terms used herein which are not otherwise defined
herein shall have the respective meanings ascribed thereto in the
Loan Agreement.
2. Loans .
(a) Sections 2.1(e) and 2.1(g)
of the Loan Agreement are hereby amended by deleting each reference
to “clause (d) of the definition of Pro Rata
Share” and replacing it with “clause (e) of the
definition of Pro Rata Share”.
(b) Section 2.l(f) of the Loan
Agreement is hereby amended by deleting the reference to
“34.532%” and replacing it with
“20.175%”.
(c) Section 2.1 of the Loan
Agreement is hereby amended by inserting the following new
subsection (i) to the end of such Section:
“(i) Subject to and upon the
terms and conditions contained herein, in Amendment No. 15 and
in the other Financing Agreements, each Tranche D Lender agrees to
fund a portion of the Tranche D Loan to or for the benefit of
Borrowers on the Amendment No. 15 Effective Date in an amount
equal to its Pro Rata Share of the aggregate original principal
amount of $50,000,000. The Tranche D Loan (i) shall be repaid,
together with interest and other amounts payable with respect
thereto, in accordance with the provisions of this Agreement and
the other Financing Agreements, (ii) shall be secured by all
of the Collateral, and (iii) shall be subject to the
Guarantees made by Borrowers and Guarantors in favor of Agent.
Except for the making of the Tranche D Loan as set forth in this
Section 2.1(i), Borrowers shall have no right to request from
Tranche D Lenders, and Tranche D Lenders shall have no obligation
to make, any additional loans or advances to Borrowers under this
Section 2.1(i) after the Amendment No. 15 Effective Date
and any repayments of the Tranche D Loan shall not be subject to
any readvance to or reborrowing by Borrowers.”
3. Commitments .
Section 2.3 of the Loan Agreement is hereby amended by
deleting such Section in its entirety and replacing it with the
following:
“2.3 Commitments . The
aggregate amount of each Tranche A Lender’s Pro Rata Share of
the Tranche A Loans and Letter of Credit Accommodations
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shall not exceed the amount of such
Tranche A Lender’s Tranche A Commitment, the aggregate amount
of each Tranche B Lender’s Pro Rata Share of the Tranche B
Loans shall not exceed the amount of such Tranche B Lender’s
Tranche B Commitment, the aggregate amount of each Tranche C
Lender’s Pro Rata Share of the Tranche C Loan shall not
exceed the amount of such Tranche C Lender’s Tranche C
Commitment, and the aggregate amount of each Tranche D
Lender’s Pro Rata Share of the Tranche D Loan shall not
exceed the amount of such Tranche D Lender’s Tranche D
Commitment, as the same may from time to time be amended in
accordance with the provisions hereof.”
4. Unused Line Fee .
Section 3.2(a) of the Loan Agreement is hereby amended by
deleting such Section in its entirety and replacing it with the
following:
“(a) Unused Line Fee .
Borrowers shall pay to Agent, for the account of Tranche A Lenders
and Tranche B Lenders, monthly an unused line fee at a rate equal
to one-half (.50%) percent per annum calculated upon the amount by
which $228,000,000 exceeds the average daily principal balance of
the outstanding Revolving Loans and Letter of Credit Accommodations
during the immediately preceding month (or part thereof) while this
Agreement is in effect and for so long thereafter as any of the
Obligations are outstanding, which fee shall be payable on the
first day of each month in arrears.”
5. Payments .
Section 6.4(a) of the Loan Agreement is hereby amended by
deleting such Section in its entirety and replacing it with the
following:
“(a) All Obligations shall be
payable to the Agent Payment Account as provided in
Section 6.3 or such other place as Agent may designate from
time to time. Agent shall apply payments received or collected from
any Borrower or Guarantor or for the account of any Borrower or
Guarantor (including the monetary proceeds of collections or of
realization upon any Collateral) as follows (subject to the
provisions of the Intercreditor Agreement): first , to pay
any fees, indemnities or expense reimbursements then due to Agent
and Lenders from any Borrower or Guarantor; second , to pay
interest due in respect of any Loans (and including any Special
Agent Advances); third to pay or prepay principal in respect
of Special Agent Advances; fourth , to pay or prepay
principal in respect of the Revolving Loans, whether or not then
due, and to pay or prepay Obligations arising under or pursuant to
any Hedge Agreements of a Borrower or Guarantor with an Affiliate
of Agent (but as to any such Obligations arising under or pursuant
to any Hedge Agreement, up to the amount of any then effective
Reserve established in respect of such Obligations), on a pro rata
basis; fifth , to pay or prepay principal in respect of the
Tranche C Loan; sixth pay or prepay principal in respect of
the Tranche D Loan; seventh , to pay or prepay any other
Obligations (excluding Obliga
