Credit Agreement (2012)Full Document 

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EXECUTION VERSION

$300,000,000

CREDIT AGREEMENT

among

Metal Services Holdco, LLC,

as MS Holdco,

Tube City IMS Corporation,

as Company,

The Several Lenders from Time to Time Parties Hereto,

JPMorgan Chase Bank, N.A.,

as Administrative Agent,

Bank of America, N.A.

and

Credit Suisse AG, Cayman Islands Branch,

as Co-Syndication Agents,

Wells Fargo Bank, National Association,

as Documentation Agent

Dated as of March 20, 2012

J.P. Morgan Securities LLC

Merrill Lynch, Pierce, Fenner & Smith Incorporated

Credit Suisse Securities (USA) LLC

and

Wells Fargo Securities, LLC,

as Joint Lead Arrangers

and

Joint Bookrunners


TABLE OF CONTENTS

Page
SECTION 1. DEFINITIONS 1

1.1

Defined Terms 1

1.2

Other Interpretive Provisions 32
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 32

2.1

Term Commitments 32

2.2

Procedure for Borrowing 32

2.3

Repayment of Term Loans 33

2.4

Fees 33

2.5

Optional Prepayments 33

2.6

Mandatory Prepayments and Commitment Reductions 34

2.7

Conversion and Continuation Options 36

2.8

Interest Rates and Payment Dates 36

2.9

Computation of Interest 37

2.10

Inability to Determine Interest Rate; Illegality 37

2.11

Pro Rata Treatment and Payments 38

2.12

Requirements of Law 39

2.13

Taxes 40

2.14

Indemnity 43

2.15

Change of Lending Office 43

2.16

Replacement of Lenders 43

2.17

Notes 44

2.18

Incremental Credit Extensions 44

2.19

Refinancing Amendments 45

2.20

Extensions of Term Loans 46
SECTION 3. REPRESENTATIONS AND WARRANTIES 48

3.1

Financial Condition 48

3.2

No Change 48

3.3

Organization; Powers 48

3.4

Authorization; Enforceability 48

3.5

Governmental Approval; Compliance with Law 48

3.6

Litigation 48

3.7

Ownership of Property; Liens 49

3.8

Intellectual Property 49

3.9

Taxes 49

3.10

Federal Regulations 50

3.11

ERISA 50

3.12

Investment Company Act; Other Regulations 50

3.13

Subsidiaries 50

3.14

Environmental Matters 50

3.15

Accuracy of Information, etc 50

3.16

Security Documents 51

3.17

Solvency 51

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Page

3.18

Labor Disputes 51

3.19

Compliance with Laws and Agreements 51

3.20

Insurance 51

3.21

PATRIOT Act and Other Specified Laws 52
SECTION 4. CONDITIONS PRECEDENT 52

4.1

Conditions to Initial Extension of Credit 52

4.2

Conditions to Each Extension of Credit 54
SECTION 5. AFFIRMATIVE COVENANTS 54

5.1

Financial Statements 54

5.2

Certificates; Other Information 55

5.3

Payment of Taxes 57

5.4

Maintenance of Existence; Compliance 57

5.5

Maintenance of Property; Insurance 57

5.6

Inspection of Property; Books and Records; Discussions 57

5.7

Notices 58

5.8

Additional Collateral, Further Assurances 58

5.9

Credit Ratings 59

5.10

Designation of Unrestricted Subsidiaries 59

5.11

Use of Proceeds 60

5.12

Post Closing Matters 60
SECTION 6. NEGATIVE COVENANTS 60

6.1

Indebtedness 60

6.2

Liens 65

6.3

Fundamental Changes 68

6.4

Disposition of Property 69

6.5

Restricted Payments 71

6.6

Investments 73

6.7

Optional Payments of Subordinated Indebtedness 76

6.8

Transactions with Affiliates 76

6.9

Sale Leaseback Transactions 77

6.10

Swap Agreements 77

6.11

Negative Pledge Clauses 77

6.12

Clauses Restricting Restricted Subsidiary Distributions 78

6.13

Lines of Business 78
SECTION 7. GUARANTEE 78

7.1

The Guarantee 78

7.2

Obligations Unconditional 79

7.3

Reinstatement 80

7.4

No Subrogation 80

7.5

Remedies 80

7.6

Instrument for the Payment of Money 80

7.7

Continuing Guarantee 80

7.8

General Limitation on Guarantor Obligations 80

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Page

7.9

Release of Guarantors 80

7.10

Right of Contribution 81
SECTION 8. EVENTS OF DEFAULT 81

8.1

Events of Default 81

8.2

Action in Event of Default 83

8.3

Application of Proceeds 83

SECTION 9. ADMINISTRATIVE AGENT

84

9.1

Appointment 84

9.2

Delegation of Duties 85

9.3

Exculpatory Provisions 85

9.4

Reliance by Agents 86

9.5

Notice of Default 86

9.6

Non-Reliance on Administrative Agent and Other Lenders 86

9.7

Indemnification 87

9.8

Administrative Agent in its Individual Capacity 87

9.9

Successor Administrative Agent 87

9.10

No Other Duties, etc. 88

9.11

Withholding Taxes 88

SECTION 10. MISCELLANEOUS

88

10.1

Amendments and Waivers 88

10.2

Notices 91

10.3

No Waiver; Cumulative Remedies 92

10.4

Survival of Representations and Warranties 92

10.5

Payment of Expenses 92

10.6

Successors and Assigns; Participations and Assignments 93

10.7

Adjustments; Set off; Counterparts; Electronic Execution 97

10.8

Severability 98

10.9

Integration 98

10.10

Governing Law 98

10.11

Submission To Jurisdiction; Waivers 99

10.12

Acknowledgements 99

10.13

Confidentiality 100

10.14

WAIVERS OF JURY TRIAL 101

10.15

USA PATRIOT Act Notification 102

10.16

Maximum Amount 102

10.17

Lender Action 102

10.18

No Fiduciary Duty 103

10.19

Intercreditor Agreement 103

SCHEDULES & EXHIBITS:

1.1A Commitments
3.6 Litigation
3.14 Disclosed Matters
3.16 UCC Filing Jurisdictions

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5.12 Post-Closing Matters
6.1(c) Existing Indebtedness
6.2(h) Existing Liens
6.4 Disposition of assets
6.6(l) Existing Investments
6.8 Affiliate Transactions
6.11 Restrictive Agreements
EXHIBITS:
A Form of Pledge and Security Agreement
B Form of Borrowing Notice
C Form of Officer’s Certificate
D Form of Assignment and Assumption
E Form of Conversion/Continuation Notice
F Form of Term Loan Note
G [Reserved.]
H Form of Guarantor Joinder Agreement
I Form of Pari Lien Intercreditor Agreement Terms
J Form of Junior Lien Intercreditor Agreement Terms
K Form of U.S. Tax Compliance Certificate

-iv-


CREDIT AGREEMENT (this "Agreement"), dated as of March 20, 2012, among Metal Services Holdco, LLC, a Delaware limited liability company ("MS Holdco"), Tube City IMS Corporation, a Delaware corporation (the "Company" or the "Borrower"), the Subsidiary Guarantors (this and each other capitalized term used herein without definition having the meaning assigned to such term in Section 1.1), the several banks, financial institutions, institutional investors and other entities from time to time parties to this Agreement as lenders or holders of Loans or Commitments (the "Lenders"), and JPMorgan Chase Bank, N.A., as Administrative Agent.

W I T N E S S E T H:

WHEREAS, MS Holdco, Metal Services Merger Sub Corp. (which merged into the Company with the Company being the surviving entity in such merger), certain subsidiaries of MS Holdco, the several banks, financial institutions, institutional investors and other entities from time to time parties thereto as lenders or holders of the loans and issuers of letters of credit thereunder, and Credit Suisse, as Administrative Agent and collateral agent entered into that certain term loan credit agreement on January 25, 2007 (the "Existing Term Loan Credit Facility" and the term loans made thereunder the "Existing Term Loan" and the letters of credit issued thereunder the "Existing Synthetic Letters of Credit");

WHEREAS, MS Holdco, Metal Services Merger Sub Corp. (which merged into the Company with the Company being the surviving entity in such merger), certain subsidiaries of MS Holdco and The Bank of New York, as trustee entered into that certain Indenture on January 25, 2007 (the "Senior Subordinated Notes Indenture") governing the Company’s 9.75% Senior Subordinated Notes due 2015 (the "Senior Subordinated Notes");

WHEREAS, MS Holdco, the Borrower, certain subsidiaries of Borrower as borrowers from time to time, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the "U.S. ABL Administrative Agent"), JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian administrative agent, J.P. Morgan Europe Limited, as European administrative agent and as European Collateral Agent and the other agents party thereto from time to time, entered into that certain Credit Agreement on December 15, 2011 (the "ABL Credit Agreement");

WHEREAS, on the date hereof, the Administrative Agent, on behalf of the Term Secured Parties (as defined in the Term Loan/ABL Intercreditor Agreement), the U.S. ABL Administrative Agent, on behalf of the ABL Secured Parties (as defined in the Term Loan/ABL Intercreditor Agreement), MS Holdco and certain of its subsidiaries entered into that certain Lien Subordination and Intercreditor Agreement (the "Term Loan/ABL Intercreditor Agreement");

WHEREAS, the Lenders have agreed to extend certain credit facilities to the Borrower in an aggregate amount not to exceed $300,000,000, consisting of $300,000,000 in an aggregate principal amount of Term Loans; and

WHEREAS, the proceeds, or a portion thereof, of the Term Loans will (i) be used by the Company to repay in full the Existing Term Loan outstanding as of the Closing Date, (ii) be used by the Company to redeem in full the Senior Subordinated Notes outstanding as of the Closing Date, (iii) be used to pay fees and expenses related to the foregoing, and (iv) be used for general corporate purposes (the transactions referred in clauses (i) through (iv) collectively, together with transactions ancillary thereto, the "Transactions");

NOW, THEREFORE, the parties hereto hereby agree as follows:

SECTION 1. DEFINITIONS

1.1 Defined Terms. As used in this Agreement (including the recitals hereof), the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

"ABL Credit Agreement": as defined in the preamble hereto.

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