exv4w1



 





EXHIBIT 4.1




SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT




     This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is
made and entered into as of January 12, 2007 (the “Effective Date”), by and among METAL
MANAGEMENT, INC., a Delaware corporation, CIM TRUCKING, INC., an Illinois corporation, METAL
MANAGEMENT AEROSPACE, INC., a Delaware corporation, METAL MANAGEMENT ALABAMA, INC., a Delaware
corporation, METAL MANAGEMENT ARIZONA, L.L.C., an Arizona limited liability company, METAL
MANAGEMENT CONNECTICUT, INC., a Delaware corporation, METAL MANAGEMENT INDIANA, INC., an Illinois
corporation, METAL MANAGEMENT MEMPHIS, L.L.C., a Tennessee limited liability company, METAL
MANAGEMENT MIDWEST, INC., an Illinois corporation, METAL MANAGEMENT MISSISSIPPI, INC., a Delaware
corporation, METAL MANAGEMENT NEW HAVEN, INC., a Delaware corporation, METAL MANAGEMENT NORTHEAST,
INC., a New Jersey corporation, METAL MANAGEMENT OHIO, INC., an Ohio corporation, METAL MANAGEMENT
PITTSBURGH, INC., a Delaware corporation, METAL MANAGEMENT PROLER SOUTHWEST, INC., a Delaware
corporation, METAL MANAGEMENT S&A HOLDINGS, INC., a Delaware corporation, METAL MANAGEMENT WEST,
INC., a Colorado corporation, METAL MANAGEMENT WEST COAST HOLDINGS, INC., a Delaware corporation,
NAPORANO IRON & METAL, INC., a Delaware corporation, PROLER SOUTHWEST GP, INC., a Delaware
corporation, PROLER SOUTHWEST LP, a Texas limited partnership, and RESERVE IRON & METAL LIMITED
PARTNERSHIP, a Delaware limited partnership (collectively, the “Existing Borrowers”); METAL
MANAGEMENT, INC., a Delaware corporation, acting in its capacity as borrowing agent and funds
administrator for the Borrowers (in such capacity, the “Funds Administrator”); NEW YORK
RECYCLING VENTURES, INC., a Delaware corporation (“New York Recycling,” and collectively
with the Existing Borrowers, the “Borrowers”); the financial institutions identified on the
signature pages hereto as lenders (the “Lenders”); and LASALLE BANK NATIONAL ASSOCIATION, a
national banking association acting in its capacity as agent for the Lenders (in such capacity,
“Agent”).



     WHEREAS, the Existing Borrowers, the Funds Administrator, the Lenders and the Agent are party
to a certain Amended and Restated Credit Agreement dated as of May 9, 2006, as amended by a certain
First Amendment to Amended and Restated Credit Agreement dated as of October 13, 2006 (such
agreement, as it may be from time to time amended, restated, modified, or supplemented, the
“Credit Agreement”);



     WHEREAS, MTLM has caused to be formed New York Recycling, which is a direct or indirect
wholly-owned subsidiary of MTLM;



     WHEREAS, New York Recycling desires to join the Credit Agreement as a Borrower thereunder, and
the Borrowers, the Funds Administrator, the Lenders and the Agent desire to further amend certain
of the terms and conditions of the Credit Agreement pursuant to the terms and conditions of this
Amendment; and



 









 





     WHEREAS, the defined terms used, but not defined, herein shall have the meanings ascribed to
such terms in the Credit Agreement.



     NOW, THEREFORE, for valuable consideration received to their mutual satisfaction, the parties
hereby agree as follows:



     1. Joinder by New York Recycling. New York Recycling hereby agrees to join and become
a party to the Credit Agreement and each other of the Credit Documents in the capacity of
“Borrower” (or similarly designated capacity, as applicable) thereunder, and hereby assumes and
agrees to perform all obligations thereunder.



     2. Amendment of Credit Agreement. Subject to the terms of this Amendment, the Credit
Agreement is hereby amended as follows:



     (a) New York Recycling. The following new definition is hereby added to Section 1.1
of the Credit Agreement:




“
‘New York Recycling’ means New York Recycling Ventures, Inc., a Delaware
corporation.”



     (b) Addition of New York Recycling. New York Recycling is hereby added to the
definition of “Borrowers” set forth in Section 1.1 of the Credit Agreement, such that the
definition of “Borrowers” reads as follows:




“ ‘Borrowers’ means, collectively, (1) MTLM, (2) CIM, (3) MTLM Aerospace,
(4) MTLM Alabama, (5) Arizona LLC, (6) MTLM Connecticut, (7) MTLM Indiana, (8) MTLM
Memphis, (9) MTLM Midwest, (10) MTLM Mississippi, (11) MTLM New Haven, (12) MTLM
Northeast, (13) MTLM Ohio, (14) MTLM Pittsburgh, (15) MTLM Proler Southwest, (16)
S&A Holdings, (17) MTLM West, (18) MTLM West Coast Holdings, (19) Naporano, (20)
Proler Southwest GP, (21) Proler Southwest LP, (22) Reserve and (23) New York
Recycling.”



     (c) Capital Expenditures. Section 8.2 of the Credit Agreement is hereby deleted and
the following inserted in its stead:




“Capital Expenditures. The Borrowers shall not permit Capital Expenditures
for the Consolidated Entity to exceed $90,000,000 for the twelve month period ending
March 31, 2007, or to exceed $65,000,000 during any fiscal year of the Consolidated
Entity thereafter.”



     (d) Schedule B, Part 6.1. Schedule B, Part 6.1 (Jurisdictions Qualified to do
Business) of the Credit Agreement is amended to add the following:




“2.5. New York Recycling Ventures, Inc. (Delaware) New York”



     (e) Schedule B, Part 6.10(a). Schedule B, Part 6.10(a) (Chief Executive Offices) of
the Credit Agreement is amended to add the following:



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“New York Recycling Ventures, Inc.




	 	 	1.	The Chief Executive Office of New York Recycling Ventures, Inc. is located at
Foot of Hawkins Street, Newark, New Jersey 07105.”





     (f) Schedule B, Part 6.10(b). Schedule B, Park 6.10(b) (Locations of Collateral) of
the Credit Agreement is amended to add the following:




“New York Recycling Ventures, Inc.




325 N. LaSalle St., Chicago, IL 60610 (books and records only)

Foot of Hawkins Street, Newark, New Jersey 07105 (books and records only)

1340 East Bay Avenue, Bronx, New York 10474 Owned”



     (g) Schedule B, Part 6.11. Schedule B, Part 6.11 (Subsidiaries) of the Credit
Agreement is amended to add the following:




“Name of Subsidiary: New York Recycling Ventures, Inc.

State of Incorporation: Delaware

Organizational Number: 4261166

States in which Qualified to do Business: New York

Authorized Capital Stock: Common Stock, $0.01 par value per share

Number of Shares Issued: 100 (Certificate C-1)

Owner of Issued Shares: Metal Management Northeast, Inc.”



     3. Security Agreement; UCC Financing Statements. New York Recycling hereby
acknowledges and agrees that it is bound by and hereby confirms and joins the terms of the Security
Agreement as a “Grantor” thereunder. New York Recycling acknowledges and agrees that Agent and its
agents are authorized to file such Uniform Commercial Code financing statements and amendments
thereto covering the Collateral or any portion thereof in such jurisdictions as Agent may deem
desirable without further authentication by the such entities, and New York Recycling does hereby
ratify, confirm, acknowledge, authorize and authenticate any such financing statements heretofore
filed. With respect to New York Recycling, the following is (i) the exact legal name of such
entity as it appears on the organizational documents of such entity, (ii) the address of the chief
executive office and principal place of business of such entity, (iii) the jurisdiction of
incorporation or formation of such entity, and (iv) the organizational identification number of
such entity:




Exact Legal Name: New York Recycling Ventures, Inc.

Jurisdiction of Incorporation: Delaware

Address:  Foot of Hawkins Street

                Newark, New Jersey 07105

Organizational Number: 4261166




          Except as set forth above, New York Recycling has not been known by any other name, including
trade names or maintained its chief executive office and principal place of business at any other
location during the preceding five (5) years. Each of the Borrowers represents and warrants that
(i) the assets and properties of New York Recycling are not subject



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to any Liens except for Permitted Liens, (ii) to the extent that financing statements have
been filed against New York Recycling in appropriate offices, Agent will have a fully perfected
first priority security interest in such Borrower’s interest in Collateral in which a security
interest may be perfected by filing, subject only to Permitted Liens, and (iii) neither such
security interest nor the exercise of any rights therein would contravene, violate, constitute a
default under or require the consent of any other person or entity under any contract, agreement,
indenture, instrument or undertaking binding upon or enforceable against any Borrower, including
without limitation, the Governing Documents of New York Recycling.



     4. Delivery of Stock Certificates. MTLM represents and warrants that MTLM Northeast
owns one-hundred percent (100%) of the issued and outstanding capital stock of New York Recycling,
free and clear of any liens, claims or encumbrances, except for the lien in favor of Agent. MTLM
shall cause to be delivered to Agent the original stock certificate(s) evidencing one-hundred
percent (100%) of the issued capital stock of New York Recycling, together with duly executed stock
power(s) in blank. Upon delivery of such stock certificate(s), Agent will have a fully perfected
first priority interest therein.



     5. General Terms of Amendment. Except as specifically amended herein, directly or by
reference, all of the terms and conditions set forth in the Credit Agreement and the other Credit
Documents are confirmed and ratified, and shall remain as originally written. This Amendment shall
be governed by and construed in accordance with the internal laws and decisions of the State of
Illinois. Nothing herein shall affect or impair any rights and powers which the Borrowers, the
Funds Administrator, any Lender or the Agent may have under the Credit Agreement or any of the
other Credit Documents.



     6. Release. In consideration of this Amendment, the Borrowers and the Funds
Administrator hereby release and discharge the Lenders and Agent and each of their respective
shareholders, directors, officers, employees, attorneys, affiliates and subsidiaries from any and
all claims, demands, liability and causes of action whatsoever, now known or unknown, arising prior
to the date hereof out of or in any way related to the extension or administration of the
Obligations, the Credit Agreement, the other Credit Documents or any security interest related
thereto.



     7. Liens not Impaired. The parties hereto further agree that this Amendment shall in
no manner affect or impair the liens and security interests evidenced by the Credit Agreement
and/or any other Credit Documents or instruments evidencing, securing or related to the
Obligations. The Borrowers hereby acknowledge that all liens and security interests securing the
Obligations are valid and subsisting.



     8. No Counterclaims or Defenses. The Borrowers and the Funds Administrator hereby
declare that neither the Borrowers nor the Funds Administrator have any set offs, counterclaims,
defenses or other causes of action against the Lenders or the Agent arising out of the Credit
Agreement, the other Credit Documents or the transactions contemplated thereby, and to the extent
any such set offs, counterclaims, defenses or other causes of action might exist, such items are
hereby waived by the Borrowers.



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     9. Representations and Undertakings of Borrowers and Funds Administrator. Each of the
Borrowers and the Funds Administrator hereby represents and warrants to the Lenders and the Agent
that: (a) each Credit Party a party hereto has the legal power and authority to execute and deliver
this Amendment; (b) the officers or representatives executing this Amendment have been duly
authorized to execute and deliver the same and bind such Credit Parties with respect to the
provisions hereof; (c) the execution and delivery hereof by such Credit Parties and the performance
and observance by such Credit Parties of the provisions hereof do not violate or conflict with the
organizational documents or agreements of such Credit Parties or any law applicable to such Credit
Parties or result in a breach of any provisions of or constitute a default under any other
agreement, document, certificate or instrument binding upon or enforceable against such Credit
Parties; (d) this Amendment constitutes a valid and binding obligation upon such Credit Parties in
every respect, and (e) the recitals to this Amendment are true and correct. The Borrowers and the
Funds Administrator hereby further represent and warrant to the Lenders and the Agent that no
Default or Event of Default has occurred under the Credit Agreement or the other Credit Documents
and that each of the representations and warranties of the Borrowers and the Funds Administrator
set forth in the Credit Agreement and the other Credit Documents are true and correct in all
material respects as of the Effective Date.



     10. Conditions Precedent. The effectiveness of this Amendment is subject to delivery
to Agent of the following, in form and substance satisfactory to Agent:




     (a) Evidence that such Uniform Commercial Code Financial Statements naming New York
Recycling as debtor as may be required by Agent have been filed in appropriate filing
offices and jurisdictions.




     (b) As required by Agent, lien searches from such filing offices and jurisdictions as
Agent shall specify evidencing that the Liens granted by New York Recycling in connection
herewith shall have a first priority over any other Liens reflected in such lien searches,
except for Permitted Liens, and that there are no other Liens on the assets or properties of
New York Recycling, except for Permitted Liens.




     (c) A Certificate of Secretary or Assistant Secretary of New York Recycling setting
forth true and correct copies of the certificate of incorporation of New York Recycling as
certified by the Secretary of State of Delaware, the bylaws of New York Recycling, a
certificate of good standing of recent date issued by the State of Delaware and evidence of
foreign qualification in each other state in which New York Recycling is required to be so
qualified, incumbency statement, and resolutions authorizing the actions taken herein.




     (d) The original stock certificate(s) evidencing one-hundred percent (100%) of the
issued and outstanding capital stock of New York Recycling, together with stock powers in
blank to Agent duly executed by the holders thereof.




     (e) A duly executed copy of a Joinder by New York Recycling in the form set forth as
Exhibit H to the Credit Agreement.



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     (f) The favorable opinion of counsel to New York Recycling in form and substance
satisfactory to Agent and its counsel.




     (g) With regard to each Credit Party other than New York Recycling, certification that
there have been no amendments to the respective bylaws, certificates of incorporation or
equivalent constituent documents of the Credit Parties since the date of the original Credit
Agreement (or if there have been such amendments, certified copies of such amended
documents) and that the resolutions authorizing amendments to the Credit Agreement are in
full force and effect, and an incumbency certificate evidencing the authority of the
officers of such Credit Parties executing this Amendment.



     11. Costs and Expenses. The Borrowers and the Funds Administrator jointly and
severally agree to pay, on demand, all costs and expenses of the Agent (including the reasonable
fees and expenses of outside counsel for the Agent) in connection with the preparation,
negotiation, execution, delivery, and administration of this Amendment and any other Credit
Documents and all other instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith or related thereto. In addition, the Borrowers and
the Funds Administrator jointly and severally agree to pay, and save the Lenders and the Agent
harmless from all liability for, any stamp or other taxes which may be payable in connection with
the execution or delivery of this Amendment, the borrowings contemplated in this Amendment, and the
execution and delivery of any instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith or in connection with the Credit Agreement or the
other Credit Documents. All obligations in this Section shall survive any termination of the
Credit Agreement, as amended hereby, and the other Credit Documents. The Borrowers and the Funds
Administrator hereby authorize the Agent to charge the Borrowers’ account(s) with the Agent in
respect of any and all costs and expenses described hereunder.



     12. Section Titles. The Section titles and captions contained herein are and shall be
without substantive meaning and are not a part of the agreement between the parties hereto.



     13. Counterparts. This Amendment may be executed in counterparts and all such
counterparts shall constitute one agreement binding on all the parties, notwithstanding that the
parties are not signatories to the same counterpart.



[Signature Pages Follow]





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     IN WITNESS WHEREOF, the respective parties hereto have caused this Second Amendment to
Amended and Restated Credit Agreement to be executed and delivered by their duly authorized
officers as of the date first set forth above.



	 	 	 	 	 
	 	METAL MANAGEMENT, INC.,

as Funds Administrator and as Borrower

 	 
	 	By:  	/s/ Robert C. Larry
 	 
	 	 	Name:  	Robert C. Larry 	 
	 	 	Title:  	Executive Vice President and Chief Financial
Officer 	 
	 



	 	 	 
	 

	 	ADDITIONAL BORROWERS:
	 
	 	 
	 

	 	CIM TRUCKING, INC.
	 

	 	METAL MANAGEMENT AEROSPACE, INC.
	 

	 	METAL MANAGEMENT ALABAMA, INC.
	 

	 	METAL MANAGEMENT ARIZONA, L.L.C.
	 

	 	METAL MANAGEMENT CONNECTICUT, INC.
	 

	 	METAL MANAGEMENT INDIANA, INC.
	 

	 	METAL MANAGEMENT MEMPHIS, L.L.C.
	 

	 	METAL MANAGEMENT MIDWEST, INC.
	 

	 	METAL MANAGEMENT MISSISSIPPI, INC.
	 

	 	METAL MANAGEMENT NEW HAVEN, INC.
	 

	 	METAL MANAGEMENT NORTHEAST, INC.
	 

	 	METAL MANAGEMENT OHIO, INC.
	 

	 	METAL MANAGEMENT PITTSBURGH, INC.
	 

	 	METAL MANAGEMENT PROLER SOUTHWEST, INC.
	 

	 	METAL MANAGEMENT S&A HOLDINGS, INC.
	 

	 	METAL MANAGEMENT WEST, INC.
	 

	 	METAL MANAGEMENT WEST COAST HOLDINGS, INC.
	 

	 	NAPORANO IRON & METAL, INC.
	 

	 	PROLER SOUTHWEST GP, INC.






	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Robert C. Larry
 	 
	 	 	Name:  	Robert C. Larry 	 
	 	 	Title:  	Vice President 	 
	 
	 	RESERVE IRON & METAL LIMITED PARTNERSHIP



By: METAL MANAGEMENT OHIO, INC., its general        partner

 	 
	 	By:  	/s/ Robert C. Larry
 	 
	 	 	Name:  	Robert C. Larry 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page Continues]





 









 








	 	 	 
	[Signature Page to Second Amendment, Continued]






	 	 	 	 	 
	 	PROLER SOUTHWEST LP



By: PROLER SOUTHWEST GP, INC., its general partner

 	 
	 	By:  	/s/ Robert C. Larry
 	 
	 	 	Name:  	Robert C. Larry 	 
	 	 	Title:  	Vice President 	 
	 
	 	NEW YORK RECYCLING VENTURES, INC.

 	 
	 	By:  	/s/ Robert C. Larry
 	 
	 	 	Name:  	Robert C. Larry 	 
	 	 	Title:  	Vice President*/ 	 
	 



[Signature Page Continues]




 









 








	 	 	 
	[Signature Page to Second Amendment, Continued]






	 	 	 	 	 
	 	AGENT:



LASALLE BANK NATIONAL ASSOCIATION, as Agent

 	 
	 	By:  	/s/ Michael J. Vrchota
 	 
	 	 	Name:  	Michael J. Vrchota 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	LENDERS:



LASALLE BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Michael J. Vrchota
 	 
	 	 	Name:  	Michael J. Vrchota 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page Continues]




 









 








	 	 	 
	[Signature Page to Second Amendment, Continued]






	 	 	 	 	 
	 	CHARTER ONE BANK, N.A.

 	 
	 	By:  	/s/ Mark A. LoSchiavo
 	 
	 	 	Name:  	Mark A. LoSchiavo	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page Continues]




 









 








	 	 	 
	[Signature Page to Second Amendment, Continued]






	 	 	 	 	 
	 	SOVEREIGN BANK

 	 
	 	By:  	/s/ Christine Gerula
 	 
	 	 	Name:  	Christine Gerula 	 
	 	 	Title:  	Senior Vice
President 	 
	 



[Signature Page Continues]




 









 








	 	 	 
	[Signature Page to Second Amendment, Continued]






	 	 	 	 	 
	 	PNC BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ John M. Cunningham
 	 
	 	 	Name:  	John M. Cunningham 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page Continues]





 









 





[Signature Page to Second Amendment, Continued]




	 	 	 	 	 
	 	NATIONAL CITY BANK

 	 
	 	By:  	/s/ James M. Kershner
 	 
	 	 	Name:  	James M. Kershner 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page Continues]




 









 








[Signature Page to Second Amendment, Continued]




	 	 	 	 	 
	 	U.S. BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Matthew J. Schultz
 	 
	 	 	Name:  	Matthew J. Schultz 	 
	 	 	Title:  	
Vice President 	 
	 



[Signature Page Continues]




 









 








[Signature Page to Second Amendment, Continued]




	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Suzannah Harris
 	 
	 	 	Name:  	Suzannah Harris 	 
	 	 	Title:  	Vice
President 	 
	 



[Signature Page Continues]




 









 








[Signature Page to Second Amendment, Continued]




	 	 	 	 	 
	 	FIFTH THIRD BANK (CHICAGO)

 	 
	 	By:  	/s/ Neil G. Mesch
 	 
	 	 	Name:  	Neil G. Mesch 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page Continues]




 









 








[Signature Page to Second Amendment, Continued]




	 	 	 	 	 
	 	ASSOCIATED BANK, N.A.

 	 
	 	By:  	/s/ Daniel Holzhauer
 	 
	 	 	Name:  	Daniel Holzhauer 	 
	 	 	Title:  	
Vice President 	 
	 



[Signature Page Continues]




 









 








[Signature Page to Second Amendment, Continued]




	 	 	 	 	 
	 	REGIONS BANK

 	 
	 	By:  	/s/ Berkin Istanbulluoglu
 	 
	 	 	Name:  	Berkin Istanbulluoglu 	 
	 	 	Title:  	Assistant Vice
President 	 
	 



[Signature Page Continues]




 









 








[Signature Page to Second Amendment, Continued]




	 	 	 	 	 
	 	COMERICA BANK

 	 
	 	By:  	/s/ Tamara J. Miller
 	 
	 	 	Name:  	Tamara J. Miller 	 
	 	 	Title:  	Vice President