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Exhibit 10.33
[Execution]
AMENDMENT NO. 3 AND WAIVER
TO AMENDED AND RESTATED LOAN AGREEMENT
This AMENDMENT NO. 3 AND WAIVER TO AMENDED AND RESTATED LOAN
AGREEMENT (this "Amendment"), dated as of March 21, 2005, 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 "Barrower" 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 financial
institutions from time to time parties hereto as lenders, whether
by execution of this Agreement or an Assignment and Acceptance
(each individually, a "Lender" and collectively, "Lenders"),
Wachovia Bank, National Association, successor by merger to
Congress Financial Corporation, in its capacity as administrative
agent for Lenders (in such capacity, "Agent"), and Fleet Capital
Corporation in its capacity as documentation agent for Lenders (in
such capacity, "Documentation Agent").
W I T N E
S S E T H :
WHEREAS, Agent and Lenders have entered into financing
arrangements with Borrowers pursuant to which Agent and Lenders
may, upon certain terms and conditions, make loans and advances and
provide other financial accommodations to Borrowers as set forth in
the Amended and Restated Loan Agreement, dated May 5, 2004, as
amended by Amendment No. 1 to Amended and Restated Loan
Agreement, dated June 30, 2004, and Amendment No.
2 to Amended and Restated Loan Agreement, dated as of
November 10, 2004, (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 waive certain events of default under the Loan Agreement, and
agree to make certain amendments to the Loan Agreement, and Agent
and Lenders are willing to agree to such request, 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
waivers, 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 it below and the
Loan Agreement and the other Financing Agreements are hereby
amended to include, in addition and not in limitation, the
following:
" Adjusted Inventory Loan Limit "shall mean, as to each
Borrower, at any time, the amount equal to $87,500,000 (the
"Adjusted Base Amount"), minus the then outstanding principal
amount of 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;
provided , that , upon the request of Administrative
Borrower and the written consent of Agent, Agent may from time to
time, in its sole discretion, increase the Adjusted Base Amount to
an amount not to exceed $92,500,00; provided ,
further , that in no event shall the aggregate amount
of the Adjusted Inventory Loan Limit of all the Borrowers exceed
the aggregate amount of the Inventory Loan Limit of all Borrowers
by more than $7,500,00 at any time.
(b) Amendments to Definitions . Each reference to the
term "Adjusted Excess Availability" in the Loan Agreement and the
other Financing Agreements is hereby amended so that the amount of
Adjusted Excess Availability shall be determined with regard to the
Adjusted Inventory Loan Limit in lieu of the Inventory Loan
Limit.
(c) Interpretation . Capitalized terms used herein which
are not otherwise defined herein shall have the respective meanings
ascribed thereto in the Loan Agreement.
2. Minimum EBITDA . Notwithstanding anything to the
contrary contained in the Loan Agreement and the other Financing
Agreements, Borrowers and Guarantors shall not be required to
comply with the terms of Section 9.17 of the Loan Agreement
for the periods ending February 28, 2005 and March 31,
2005.
3. Minimum Debt Service Ratio . Notwithstanding anything
to the contrary contained in the Loan Agreement and the other
Financing Agreements, Borrowers and Guarantors shall not be
required to comply with the terms of Section 9.18 of the Loan
Agreement for the periods ending February 28, 2005 and
March 31, 2005.
4. Waiver . (a) Subject to the terms and conditions
set forth herein, Agent and Lenders hereby waive the Events of
Default under Section 10.1(a)(iii) of the Loan Agreement
arising from the failure of Borrowers and Guarantors to comply with
(i) the terms of Section 9.17 of the
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Loan Agreement for the periods ending
December 31, 2004 and January 31, 2005 and (ii) the
terms of Section 9.18 of the Loan Agreement for the period
ending January 31, 2005 (collectively, the "Acknowledged
Events of Default").
(b) Agent and Lenders have not waived, are not by this Amendment
waiving, and have no intention of waiving any Event of Default
which may have occurred on or prior to the date hereof, whether or
not continuing on the date hereof, or which may occur after date
hereof (whether the same or similar to the Acknowledged Events of
Default or otherwise), other than the Acknowledged Events of
Default. The foregoing waiver shall not be construed as a bar to or
a waiver of any other further Event of Default on any future
occasion, whether similar in kind or otherwise and shall not
constitute a waiver, express or implied, of any of the rights and
remedies of Agent or any Lender arising under the terms of the Loan
Agreement or any other Financing Agreements on an
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