Exhibit 10.56
[Execution]
AMENDMENT NO. 16 AND WAIVER
TO
AMENDED AND RESTATED LOAN
AGREEMENT
This AMENDMENT NO. 16 AND WAIVER TO
AMENDED AND RESTATED LOAN AGREEMENT (this “Amendment”),
dated as of April 30, 2009, 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).
W I T N E S
S E T H :
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, Amendment No. 14
to Amended and Restated Loan Agreement, dated as of October 8,
2008, and Amendment No. 15 to Amended and Restated Loan
Agreement, dated December 17, 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 waive a certain Event of Default under 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 and waiver, 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. 16” shall mean Amendment No. 16 and Waiver to
Amended and Restated Loan Agreement, dated as of April 30,
2009, 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. 16
Effective Date” shall mean the first date on which all of the
conditions precedent to the effectiveness of Amendment No. 16
shall have been satisfied or shall have been waived by
Agent.
(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) $156,000,000, (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.”
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(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 C Commitments and the Tranche D
Commitments; sometimes being individually referred to herein as a
‘Commitment’.”
(iii) 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 C Loan and the
Tranche D Loan.”
(iv) Maximum Credit . The
definition of “Maximum Credit” in Section 1.84 of
the Loan Agreement is hereby amended by deleting such definition in
its entirety and replacing it with the following:
“1.84 ‘Maximum
Credit’ shall mean the amount of
$274,000,000.”
(v) 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 C Loan and the Tranche D Loan) are owing.”
(vi) 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) $156,000,000 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.”
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(vii) Revolving Loans . The
definition of “Revolving Loans” in the Loan Agreement
is hereby amended by deleting such definition in its entirety and
replacing it with the following:
“Revolving Loans” shall
mean the Tranche A Loans.”
(viii) Special Availability
Reserve . The definition of “Special Availability
Reserve” in the Loan Agreement is hereby amended by deleting
such definition in its entirety and replacing it with the
following:
“Special Availability
Reserve” shall mean the special Reserve established by Agent
reducing the amount of Loans and Letter of Credit Accommodations
which would otherwise be available to Borrowers in the amount of
$0; provided , that , the amount of such special
Reserve shall be $10,000,000 from and at all times after the first
date on which the aggregate Excess Availability of Borrowers at any
time during any week set forth on Schedule 1 to Amendment
No. 16 has fallen below the amount set forth on such Schedule
for such week.
(ix) Tranche D Loan . The
definition of “Tranche D Loan” in the Loan Agreement is
hereby amended by deleting such definition in its entirety and
replacing it with the following:
“ ‘Tranche D Loan’
shall mean, collectively, the term loan in the aggregate principal
amount of $50,000,000 made by Tranche D Lenders to Borrowers on the
Amendment No. 15 Effective Date and the term loan in the aggregate
principal amount of $46,000,000 made by Tranche D Lenders to
Borrowers on the Amendment No. 16 Effective Date, in each case
as set forth in Section 2.1(i) hereof.”
(x) Triggering Event . The
definition of “Triggering Event” in the Loan Agreement
is hereby amended by deleting clause (e) of such definition in
its entirety and replacing it with the following:
“(e) [Intentionally
Deleted].”
(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) Section 2.1(a) of the Loan
Agreement is hereby amended by deleting such Section in its
entirety and replacing it with the following:
“(a) Subject to and upon the
terms and conditions contained herein, each Tranche A Lender
severally (and not jointly) agrees to fund its Pro Rata Share of
Tranche A Loans to each Borrower from time to time in amounts
requested by such Borrower (or Administrative Borrower on behalf of
such Borrower) up to the
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amount outstanding at any time equal
to the Tranche A Commitment of such Tranche A Lender;
provided , that , after giving effect to any such
Tranche A Loan, (x) the principal amount of the Tranche A
Loans and Letter of Credit Accommodations outstanding with respect
to any Borrower shall not exceed the lesser of (1) the
Borrowing Base of such Borrower at such time or (2) the
Revolving Loan Limit of such Borrower at such time and (y) the
aggregate principal amount of the Loans and Letter of Credit
Accommodations outstanding to all Borrowers shall not exceed the
lesser of (1) the Maximum Credit or (2) the Eligible Working
Capital.”
(b) Sections 2.1(c) through
(g) of the Loan Agreement are hereby amended by deleting such
Sections in their entirety and replacing them with the
following:
“(c) Except in Agent’s
discretion, with the consent of all Lenders, or as otherwise
provided herein, (i) the aggregate amount of the Loans and
Letter of Credit Accommodations outstanding at any time shall not
exceed the Maximum Credit or the Eligible Working Capital,
(ii) the aggregate amount of the Revolving Loans and Letter of
Credit Accommodations outstanding at any time to a Borrower shall
not exceed the Borrowing Base of such Borrower or the Revolving
Loan Limit of such Borrower, and (iii) the aggregate principal
amount of Revolving Loans and Letter of Credit Accommodations
outstanding at any time to a Borrower based on the Eligible
Inventory of such Borrower shall not exceed the Inventory Loan
Limit for such Borrower.
(d) In the event that the aggregate
amount of the Loans and Letter of Credit Accommodations outstanding
at any time exceeds the Maximum Credit or the Eligible Working
Capital, or the aggregate amount of the Revolving Loans and Letter
of Credit Accommodations outstanding at any time to a Borrower
exceeds the Borrowing Base of such Borrower or the Revolving Loan
Limit of such Borrower, or the aggregate principal amount of
Revolving Loans and Letter of Credit Accommodations based on
Eligible Inventory of a Borrower exceeds the Inventory Loan Limit
of such Borrower, or the aggregate amount of the outstanding Letter
of Credit Accommodations exceeds the sublimit for Letter of Credit
Accommodations set forth in Section 2.2(e) hereof, such event
shall not limit, waive or otherwise affect any rights of Agent or
Lenders in such circumstances or on any future occasions and
Borrowers shall, upon demand by Agent, which may be made at any
time or from time to time, immediately repay to Agent the entire
amount of any such excess(es) for which payment is
demanded.
(e) [Intentionally
Deleted].
(f) [Intentionally
Deleted].
(g) [Intentionally
Deleted].”
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(c) Sections 2.1(i) of the Loan
Agreement is hereby amended by deleting such Section in its
entirety and replacing it with the following:
“(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. Subject to and upon the terms and conditions
contained herein, in Amendment No. 16 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. 16 Effective Date in an amount equal to its
Pro Rata Share of the aggregate original principal amount of
$46,000,000. 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. 16 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 shall not
exceed the amount of such Tranche A Lender’s Tranche A
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. Fees .
(a) 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,
monthly an unused line fee at a rate equal to one-half (.50%)
percent per annum calculated upon the amount by which $156,000,000
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.”
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(b) Section 3.2(b) of the Loan
Agreement is hereby amended by deleting such Section in its
entirety and replacing it with the following:
“(b) [Intentionally
Deleted].”
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 respe
