Exhibit 10.1
TENTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
TENTH
AMENDMENT, dated as of July 27, 2009, but effective as of
June 30, 2009 (this " Amendment ”), to the
Amended and Restated Loan and Security Agreement, dated as of
July 3, 2007, as amended by the First Amendment dated as of
October 3, 2007, by the Second Amendment dated as of
January 25, 2008, by the Third Amendment dated as of
March 24, 2008, by the Fourth Amendment dated as of
May 1, 2008, by the Fifth Amendment dated as of July 15,
2008 by the Sixth Amendment dated as of September 15, 2008, by
the Seventh Amendment dated as of February 27, 2009, by the
Eighth Amendment dated as of March 13, 2009, and by the Ninth
Amendment dated as of April 1, 2009 (the “ Loan
Agreement ”), by and among, on the one hand, the lenders
identified on the signature pages thereof (such lenders, together
with their respective successors and permitted assigns, are
referred to hereinafter each individually as a “
Lender ” and collectively as the “
Lenders ”), and WELLS FARGO FOOTHILL, INC. (“
Foothill ”), a California corporation, as the arranger
and administrative agent for the Lenders (in such capacity,
together with its successors and assigns in such capacity, “
Agent ”), and, on the other hand, METALICO, INC., a
Delaware corporation (“ Parent ”), and each of
Parent’s Subsidiaries identified on the signature pages
thereof (such Subsidiaries, together with Parent, are referred to
hereinafter each individually as a “ Borrower ”,
and collectively, jointly and severally, as the “
Borrowers ”).
WHEREAS, the Loan Parties, Agent and the Lenders
wish to amend certain terms and provisions of the Loan Agreement
subject to the terms and conditions of this Amendment.
NOW,
THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and conditions hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Capitalized Terms . All capitalized terms used in this Amendment
(including, without limitation, in the recitals hereto) and not
otherwise defined shall have their respective meanings set forth in
the Loan Agreement.
2. Recitals . The third recital on the first page of the
Loan Agreement is hereby amended by deleting the reference to
“$60,000,000” from the fifth line thereof and inserting
“$30,000,000” in lieu thereof.
3. Existing Defined Terms in the Loan
Agreement .
Section 1.1 of the Loan Agreement is hereby amended as
follows:
(a) The definition of the term “EBITDA”
is hereby amended in its entirety to read as follows:
"'
EBITDA ’ means, with respect to any Person for any
period, the Consolidated Net Income of such Person and its
Subsidiaries for such period, plus (i) without duplication,
the sum of the following amounts of such Person and its
Subsidiaries for such period and to the extent deducted in
determining Consolidated Net Income of such Person and its
Subsidiaries for such period: (A) Consolidated Net Interest
Expense, (B) net income tax expense, (C) depreciation
expense, (D) amortization expense, (E) non-cash
compensation charges, (F) non-cash expenses relating to the
Borrowers’ ownership of the capital Stock of Beacon, and
(G) non-cash non-operating expense, minus
(A) non-cash gains relating to the Borrower’s ownership
of the capital Stock of Beacon and (B) non-cash non-operating
income; provided that for the purposes of calculating
EBITDA of the Borrowers, the EBITDA of any Person acquired by, or
of a Person substantially all of whose assets are being acquired
by, the Borrower or one or more of its Subsidiaries pursuant to an
acquisition consented to in writing by the Required Lenders during
such period shall be included on a pro forma basis for such period
(as if the consummation of such acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on
the first day of such period).”
(b) The definition of the term “Maximum
Revolver Amount” is hereby amended in its entirety to read as
follows:
"'
Maximum Revolver Amount ’ means
$30,000,000.”
(c) The definition of the term “Premium
Amount” is hereby amended as follows:
The
reference to “$60,000,000” from the second line thereof
is hereby deleted and “$30,000,000” is inserted in lieu
therefor.
(d) The definition of the term “Required
Lenders” is hereby amended in its entirety to read as
follows:
"'
Required Lenders ’ means, at any time, Lenders whose
aggregate Pro Rata Shares equal or exceed 50.1%.”
(e) By deleting in its entirety the definitions of
“Fixed Charges”, Fixed Charge Coverage Ratio”,
“Interest Expense” and “Third Ableco Loan
Prepayment Reserve”.
4. New Defined Terms . The following defined terms are hereby added
to Section 1.1 of the Loan Agreement:
(a) The definition of the term “Consolidated
Funded Indebtedness” is hereby inserted, in appropriate
alphabetical order, to read as follows:
"'
Consolidated Funded Indebtedness ’ means, with respect
to any Person at any date, all Indebtedness for borrowed money or
letters of credit of such Person, determined on a consolidated
basis in accordance with GAAP, which by its terms matures more than
one year after the date of calculation, and any such Indebtedness
maturing within one year from such date which is renewable or
extendable at the option of such Person to a date more than one
year from such date. Notwithstanding anything to the contrary
herein, “Consolidated Funded Indebtedness” shall
include, without duplication, with respect to the Borrowers, the
Revolver Usage, any Term Loan, the amount of their Capitalized
Lease Obligations, and the amount of the Ableco Loans at all times
whether renewable or extendable or not, and shall exclude at all
times, without duplication, with respect to the Borrowers, the
Senior Convertible Notes, Junior Debt and Permitted Purchase Money
Indebtedness.”
(b) The definition of the term “Consolidated
Net Income” is hereby inserted, in appropriate alphabetical
order, to read as follows:
"'
Consolidated Net Income ’ means, with respect to any
Person for any period, the net income (loss) of such Person
and its Subsidiaries for such period, determined on a consolidated
basis and in accordance with GAAP, but excluding from the
determination of Consolidated Net Income (without duplication)
(a) any non-cash extraordinary or non-recurring gains or
losses or non-cash gains or losses from Dispositions,
(b) restructuring charges, (c) effects of discontinued
operations, (d) interest that is paid-in-kind,
(e) interest income, and (f) any tax refunds, net
operating losses or other net tax benefits received during such
period on account of any prior period.”
(c) The definition of the term “Consolidated
Net Interest Expense” is hereby inserted, in appropriate
alphabetical order, to read as follows:
"'
Consolidated Net Interest Expense ’ means, with
respect to any Person for any period, gross cash interest expense
of such Person and its Subsidiaries for such period determined on a
consolidated basis and in accordance with GAAP (including interest
expense paid to Affiliates of such Person), less
(i) the sum of (A) interest income for such period and
(B) gains for such period on Hedging Agreements (to the extent
not included in interest income above and to the extent not
deducted in the calculation of gross interest expense), plus
(ii) the sum of (A) losses for such period on Hedging
Agreements (to the extent not included in such gross interest
expense) and (B) the upfront costs or fees for such period
associated with Hedging Agreements (to the extent not included in
such gross interest expense), in each case, determined on a
consolidated basis and in accordance with GAAP.”
(d) The definition of the term “Disposition
“ is hereby inserted, in appropriate alphabetical order, to
read as follows:
"'
Disposition ’ means any transaction, or series of
related transactions, pursuant to which any Person or any of its
Subsidiaries sells, assigns, transfers or otherwise disposes of any
property or assets (whether now owned or hereafter acquired) to any
other Person, in each case, whether or not the consideration
therefor consists of cash, securities or other assets owned by the
acquiring Person.”
(e) The definition of the term “Equity
Proceeds Ableco Loan Prepayment” is hereby inserted, in
appropriate alphabetical order, to read as follows:
"
‘Equity Proceeds Ableco Loan Prepayment ’ has
the meaning set forth in Section 7.8(a) .”
(f) The definition of the term “Equity
Proceeds Ableco Loan Prepayment Amount” is hereby inserted,
in appropriate alphabetical order, to read as follows:
"'
Equity Proceeds Ableco Loan Prepayment Amount ’ means,
so long as such amounts are permitted to be paid in accordance with
the terms of Section 7.8(a), the Net Cash Proceeds of the
Tenth Amendment Stock Offering not to exceed an amount equal to the
sum of (i) the first $10,000,000 (the “ Initial
Equity Proceeds Ableco Loan Prepayment Amount ”), or, if
before the making of the Tax Refund Ableco Loan Prepayment,
$12,300,000, of such Net Cash Proceeds, and (ii) one-half of
the last $3,250,000 of the next $10,000,000, or, if before the
making of the Tax Refund Ableco Loan Prepayment, one-half of the
last $950,000 of the next $7,700,000, of such Net Cash Proceeds.
For the avoidance of doubt, (x) if the Tax Refund Ableco Loan
Prepayment has been made, Parent shall be entitled to retain an
amount equal to the sum of the first $6,750,000 and one-half of the
next $3,250,000 of the Net Cash Proceeds of the Tenth Amendment
Stock Offering in excess of the first $10,000,000 thereof, or, if
the Tax Refund Ableco Loan Prepayment has not been made, Parent
shall be entitled to retain an amount equal to the sum of the first
$6,750,000 and one-half of the next $950,000 of the Net Cash
Proceeds of the Tenth Amendment Stock Offering in excess of the
first $12,300,000 thereof and (y) the Net Cash Proceeds of the
Tenth Amendment Stock Offering in excess of $20,000,000 shall be
first applied to make a permanent prepayment of the Obligations in
accordance with Section 7.8(a)(ii)(x) and (y)
.”
(g) The definition of the term “Tenth
Amendment Stock Offering” is hereby inserted, in appropriate
alphabetical order, to read as follows:
"'
Tenth Amendment Stock Offering ’ means, so long as
(i) no Default or Event of Default has occurred and is
continuing or would result therefrom and (ii) proceeds thereof
are received no later than December 31, 2009, the sale or
sales by Parent of its stock on or after the Tenth Amendment
Effective Date but prior to December 31,
2009.”
(h) The definition of the term “Tax Refund
Prepayment Amount” is hereby inserted, in appropriate
alphabetical order, to read as follows:
"'
Tax Refund Prepayment Amount ’ means an amount not to
exceed $2,300,000 from the proceeds of 2008 Federal tax refunds and
net operating loss carrybacks actually received, in cash, by the
Borrowers prior to March 31, 2010.”
(i) The definition of the term “Tax Refund
Ableco Loan Prepayment” is hereby inserted, in appropriate
alphabetical order, to read as follows:
"'
Tax Refund Ableco Loan Prepayment ’ has the meaning
set forth in Section 7.8(a) .”
(j) The definition of the term “Tax Refund
Ableco Loan Prepayment Amount” is hereby inserted, in
appropriate alphabetical order, to read as follows:
(k) "' Tax Refund Ableco Loan Prepayment
Amount ’ means, so long as such amounts are permitted to
be paid in accordance with the terms of Section 7.8(a), an
amount not to exceed 100%, or, if after the making of the Equity
Proceeds Ableco Loan Prepayment Amount, one-half (1/2), of the Net
Cash Proceeds of the Tax Refund Prepayment Amount. For the
avoidance of doubt, so long as the Tax Refund Prepayment Amount is
actually received, in cash, by the Borrowers prior to
March 31, 2010 but after the making of the Equity Proceeds
Ableco Loan Prepayment, Parent shall have the right to and shall
retain an amount equal to one-half (1/2) of the Net Cash Proceeds
of the Tax Refund Prepayment Amount.”
(l) The definition of the term “Hedging
Agreement” is hereby inserted, in appropriate alphabetical
order, to read as follows:
"'
Hedging Agreement ’ means any interest rate, foreign
currency, commodity or equity swap, collar, cap, floor or forward
rate agreement, or other agreement or arrangement designed to
protect against fluctuations in interest rates or currency,
commodity or equity values (including any option with respect to
any of the foregoing and any combination of the foregoing
agreements or arrangements), and any confirmation executed in
connection with any such agreement or
arrangement.”
(m) The definition of the term “Leverage
Ratio” is hereby inserted, in appropriate alphabetical order,
to read as follows:
"'
Leverage Ratio ’ means, as of any date of
determination, the ratio of (a) the Consolidated Funded
Indebtedness as of such date to (b) Borrowers’ EBITDA
for the 12 month period ended as of such
date.”
(n) The definition of the term “Line
Block” is hereby inserted, in appropriate alphabetical order,
to read as follows:
"'
Line Block ’ has the meaning set forth in
Section 2.1(b).”
(o) The definition of the term “Tenth
Amendment Effective Date” is hereby inserted, in appropriate
alphabetical order, to read as follows:
"'
Tenth Amendment Effective Date ’ means the date on
which all of the conditions precedent to the effectiveness of the
Tenth Amendment to this Agreement dated as of July 27, 2009,
by and among Borrowers, the Lenders and Agent, have been fulfilled
or waived.”
5. Revolver Advances .
(a) Section 2.1(a)(y)(i) is hereby amended as
follows:
The
reference to “$30,000,000” from the second line thereof
is hereby deleted and “$10,000,000” is inserted in lieu
therefor.
(b) The last sentence of Section 2.1(b) is
hereby amended and restated in its entirety to read as
follows:
“Moreover, in addition to the
foregoing reserves, the Loan Parties acknowledge that on the Tenth
Amendment Effective Date Agent shall establish a reserve against
Availability in the initial amount of an additiona
