Debtor-in-Possession Credit Agreement, dated as of January 24, 2018, by and among Real Industry, Inc., 210/Rely Capital, LP (as DIP Agent), and the DIP Lenders party thereto

EXHIBIT 10.1

DEBTOR-IN-POSSESSION

CREDIT AGREEMENT

dated as of January 24, 2018

among

REAL INDUSTRY, INC.

Chapter 11 Debtor and Debtor-In-Possession,
as Borrower,

210/RELY CAPITAL, LP
as DIP Agent,

and

THE DIP LENDERS PARTY HERETO

DEBTOR-IN-POSSESSION CREDIT AGREEMENT

THIS DEBTOR-IN-POSSESSION CREDIT AGREEMENT, dated as of January 24, 2018, is entered into by REAL INDUSTRY, INC., a Chapter 11 debtor and debtor-in-possession as borrower (“Borrower”),  210/RELY CAPITAL, LP, a Texas limited partnership, as agent (in such capacity, and together with any successors and assigns, “DIP Agent”), and the lenders from time to time party hereto (each, a “DIP Lender,” and collectively, the “DIP Lenders”).

RECITALS:

WHEREAS,  DIP Agent and DIP Lenders have agreed, subject to various conditions precedent, to extend a multiple advance term credit facility to Borrower to fund working capital, operational expenses and restructuring expenses and for other purposes permitted hereunder; and

WHEREAS,  Borrower desires to secure the Obligations under the DIP Loan Documents by granting to DIP Agent, for the benefit of DIP Lenders, a security interest in and lien on certain assets of Borrowers.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, Borrower,  DIP Agent and DIP Lenders hereby agree as follows:

“Accessions” means, with respect to Borrower, “accessions” (as defined in Article 9 of the UCC) to other Collateral of Borrower.

“Accounts” means, with respect to Borrower, “accounts” (as defined in Article 9 of the UCC) of Borrower.

“Affiliate” means, with respect to any Person, (a) any Person that directly or indirectly controls such Person, (b) any Person which is controlled by or is under common control, direct or indirect, with such controlling Person, and (c) in the case of an individual, the parents, descendants, siblings, spouse, aunts, uncles, nieces, nephews and cousins of such individual.  As used in this definition, the term “control” of a Person means the possession, directly or indirectly, of the power to vote ten percent (10.0%) or more of any class of voting securities of such Person or to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Alloy Debtors” has the meaning set forth in Section 3.15.

“AML Laws” means the “Foreign Corrupt Practices Act”, as well as all applicable laws governing money laundering, including, but not limited to, U.S. law FINRA AML RULE 3310, (31 U.S.C. 5311, et seq.),  US Patriot Act, U.S. Department of Justice Rules, and guidelines issued by the U.S. banking and securities commission, as well as other applicable regulations.  

“Approved Budget” means the budget of Borrower relative to the operations of Borrower in the Chapter 11 Case in the form attached hereto as Annex A, as the same may be modified, amended or updated in any non-material respect, without the need for approval by the Bankruptcy Court, upon the written consent of DIP Agent and filing of notice of such non-material modification, amendment or update with the Bankruptcy Court, or otherwise as provided in Section 9.05.

“Asset Disposition” means any sale, lease, license or other consensual disposition by Borrower of any asset.

“Bankruptcy Code” shall mean Title 11 of the United States Code (11 U.S.C. § 101 et seq.), as amended.

“Bankruptcy Court” means the United States Bankruptcy Court for the District of Delaware.

“Board” means the board of directors of Borrower.

“Borrower” is defined in the introductory paragraph hereof.

“Borrower’s Account” means the account specified in writing by Borrower to DIP Lenders into which the proceeds of DIP Loans (other than Protective Advances, which shall be disbursed by DIP Lenders in a manner permitted by Section 2.01(a)(ii)) to Borrower shall be deposited, or such other account as Borrower may specify by written notice to DIP Lenders.

“Borrowing” means a borrowing of a DIP Loan.

“Business Day” means any day except a Saturday, Sunday or other day on which either the New York Stock Exchange is closed, or on which commercial banks in New York, New York are authorized by law to close.

“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) Property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Carve Out” means (i) all fees required to be paid to the Clerk of the Bankruptcy Court and to the Office of the United States Trustee under section 1930(a) of Title 28 of the United States Code;  (ii) all accrued, allowed and unpaid fees and expenses of Borrower’s professionals and the professionals for any official committee appointed in the Chapter 11 Case through and including the date of delivery of a Carve-Out Trigger Notice up to the amounts set forth in the Approved Budget; and (iii) $150,000 for any fees and expenses of Borrower’s professionals and the professionals for any official committee appointed in the Chapter 11 Case following the delivery of a Carve-Out Trigger Notice; provided that, notwithstanding the foregoing, the fees and expenses described in clauses (i) through (iii) above shall include solely those fees and expenses directly relating to the Chapter 11 Case of Borrower and the Guarantors, if any, and any fees allocable to Borrower pursuant to the Interim Compensation Procedures Order entered in Borrower’s cases

(and, for the avoidance of doubt, no fees or expenses directly related to the Chapter 11 cases of any other affiliate of Borrower). No portion of the Carve Out or proceeds of the DIP Loans or any other amounts may be used for the payment of the fees and expenses of any person incurred in prosecuting any claims or causes of actions against DIP Lenders under the DIP Loan Documents, their respective advisors, agents and sub-agents, including formal discovery proceedings in anticipation thereof, and/or any lien of DIP Lenders under the DIP Loan Documents.

“Carve Out Trigger Notice” means a written notice delivered by DIP Agent to the Borrower’s lead counsel, the U.S. Trustee, and lead counsel to the Committee, which notice may be delivered at any time following the occurrence and during the continuation of a Default, expressly stating that the Carve-Out is triggered.   

“Cash Equivalents” means any Investment in (a) direct obligations of the United States or any agency thereof, or obligations guaranteed by the United States or any agency thereof, (b) commercial paper rated at least A-1 or the equivalent thereof by Standard & Poor’s Ratings Service or P-1 or the equivalent thereof by Moody’s Investors Service, Inc., (c) time deposits with, including certificates of deposit issued by, any bank or trust company which is organized under the laws of the United States or any State thereof and has capital, surplus and undivided profits aggregating at least $500,000,000 and which issues (or the parent of which issues) certificates of deposit or commercial paper with a rating described in clause (b) above, (d) repurchase agreements with respect to securities described in clause (a) above entered into with an office of a bank or trust company meeting the criteria specified in clause (c) above, provided that, in each case, such Investment matures within three months from the date of acquisition thereof by Borrower, or (e) any money market or mutual fund which invests only in the foregoing types of investments and the liquidity of which is satisfactory to DIP Agent.

“Cash Management Order” has the meaning set forth in the DIP Order.

“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, state and local analogs, and all rules and regulations and requirements thereunder in each case as now or hereafter in effect.

 “Change of Control” means there has occurred an “ownership change” of Borrower within the meaning of Section 382 of the Code as determined in the sole discretion of DIP Agent.

“Chapter 11 Case” means Case No. 17-12464  (KJC) filed by Borrower under Chapter 11 of the Bankruptcy Code with the Bankruptcy Court.

 “Chattel Paper” means, with respect to Borrower, “chattel paper” (as defined in Article 9 of the UCC) of Borrower.

“Closing Date” means the date upon which all conditions contained in Article VI are satisfied, which date shall be no later than three (3) Business Days following January 23, 2018.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” means all property, now existing or hereafter acquired (and whether or not acquired or generated prior or subsequent to the Petition Date), mortgaged or pledged to, or

purported to be subjected to a Lien in favor of, DIP Agent, for the benefit of DIP Lenders, pursuant to the Security Documents,  including, without limitation, all of Borrower’s and each Guarantor’s: (a) Accounts; (b) Chattel Paper; (c) Commercial Tort Claims; (d) Deposit Accounts, all cash, and other property deposited therein or otherwise credited thereto from time to time and other monies and property in the possession or under the control of DIP Agent or DIP Lender or any Affiliate, representative, agent or correspondent of DIP Agent or DIP Lender,  including without limitation, any cash collection, “lockbox” and “concentration” accounts, “core concentration accounts,” and in each case all amounts on deposit therein from time to time; (e) Documents; (f) General Intangibles,  including, without limitation, any and all Intellectual Property; (g) Goods,  including, without limitation, any and all Inventory, any and all Equipment and any and all Fixtures; (h) Instruments; (i) Investment Property; (j) rights under letters of credit; (k) Supporting Obligations; (l) any and all other personal property and interests whether or not subject to the UCC; (m) any and all books and records, in whatever form or medium, that at any time evidence or contain information relating to any of the foregoing properties or interests in properties or are otherwise necessary or helpful in the collection thereof or realization thereon; (n) all Accessions and additions to, and substitutions and replacements of, any and all of the foregoing; (o) interests in leases and leaseholds, interests in real property; (p) all proceeds of any causes of actions for preferences, fraudulent conveyances, and other avoidance power claims under Sections 502(d), 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code; (q) tax or other refunds; and (r) all Proceeds and products of the foregoing, and all insurance pertaining to the foregoing and proceeds thereof;  provided that Collateral shall not include (i) any permit or license (A) that prohibits or requires the consent of any Person other than the Borrower, a Guarantor or any of their Affiliates which has not been obtained as a condition to the creation by such Person of a Lien on any right, title or interest in such permit, license or contractual obligation or any Investment Property related thereto or (B) to the extent that any applicable law applicable thereto prohibits the creation of a Lien thereon, but only, with respect to the prohibition in (A) and (B), to the extent, and for as long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by any other applicable law, (ii) property owned by  any Guarantor that is subject to a purchase money Lien or a Capital Lease Obligation if the contractual obligation pursuant to which such Lien is granted (or in the document providing for such Capital Lease Obligation) prohibits or requires the consent of any Person other than the Borrower or a Guarantor or any other their Affiliates which has not been obtained as a condition to the creation of any other Lien on such property, and (iii) any "intent to use" trademark applications for which a statement of use has not been filed (but only until such statement is filed).

“Commercial Tort Claims” means, with respect to Borrower, “commercial tort claims” (as defined in Article 9 of the UCC) of Borrower.

“Commitment Amount” means, as to each DIP Lender, the maximum committed amount for such DIP Lender on the Commitment Annex.

“Commitment Annex” means Annex B to this DIP Credit Agreement.

“Commitment Expiry Date” means the earlier of (a) November 17, 2018, (b) the date upon which the entire DIP Commitment has been advanced by DIP Lenders to Borrower, or (c) such later date as DIP Lenders may agree in their sole and absolute discretion.

“Commitment Letter” means the commitment letter, dated January 10, 2018 by and among 210 Capital, LLC, the Private Credit Group of Goldman Sachs Asset Management, L.P. and Real Industry, Inc. setting forth the proposed terms and conditions to govern the Equity Commitment and this DIP Credit Agreement, as filed at Docket No. 253 on the Bankruptcy Court’s Docket.

“Commitment Percentage” shall mean, as to each DIP Lender, the percentage identified as its Commitment Percentage on the Commitment Annex.

“Committee” means any official committee of the unsecured creditors appointed by the U.S. Trustee pursuant Section 1102 of the Bankruptcy Code in the Chapter 11 Case.

“Compliance Certificate” means a certificate, duly executed by a Responsible Officer, appropriately completed and in form and substance acceptable to DIP Agent.

“Confirmation Order” means an order of the Bankruptcy Court confirming the Plan in form and substance acceptable to DIP Lenders.

“Controlled Group” means all members of a controlled group of corporations and all members of a controlled group of trades or businesses (whether or not incorporated) under common control which, together with any DIP Loan Party, is treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.

“Debt” of a Person means, at any date without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to Property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of Property or services (excluding current accounts payable (other than any account payable arising prior to the Petition Date) incurred in the ordinary course of business and not more than 45 days past due), (e) all Debt of others secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on Property owned or acquired by such Person, whether or not the Debt secured thereby has been assumed, (f) all Guarantees by such Person of Debt of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, and (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The Debt of any Person shall include the Debt of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Debt provide that such Person is not liable therefor.

“Default” means any condition or event which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.

“Deposit Account” means, with respect to Borrower, a “deposit account” (as defined in Article 9 of the UCC) of Borrower.

“Deposit Account Control Agreement” means an agreement, in form and substance satisfactory to DIP Agent, among DIP Agent,  Borrower and any bank at which Borrower maintains a Deposit Account (except for the Excluded Account), which agreement provides that (a) such bank shall comply with instructions originated by DIP Agent directing disposition of the funds in such Deposit Account without further consent by Borrower, and (b) such bank shall agree that it shall have no Lien on, or right of setoff against, such Deposit Account or the contents thereof, other than in respect of commercially reasonable fees and other items expressly consented to by DIP Agent, and containing such other terms and conditions as DIP Agent may require.

“DIP Agent” is defined in the introductory paragraph hereof.

“DIP Agent Professional Fees” means all fees and expenses of counsel, consultants, financial advisors, for DIP Agent.

“DIP Commitment” means, with respect to DIP Lenders’ commitment to lend hereunder, $5,500,000 in the aggregate as set forth on the Commitment Annex, as such amount may be reduced pursuant to the terms of this DIP Credit Agreement or the DIP Order.

“DIP Credit Agreement” means this Debtor-In-Possession Credit Agreement, as amended, supplemented or otherwise modified from time to time.

“DIP Expenses” has the meaning set forth in Section 8.01.

“DIP Lender” and “DIP Lenders” are defined in the introductory paragraph hereof.

“DIP Loan Documents” means this DIP Credit Agreement, the Notes, the Guaranty Agreement, the Security Agreement and other Security Documents, the DIP Order, the Approved Budget, and all other documents, instruments and agreements contemplated herein or thereby and executed concurrently herewith or at any time and from time to time hereafter, as any or all of the same may be amended, supplemented, restated or otherwise modified from time to time.

“DIP Loan Outstandings” means, at any time of calculation, the then-existing aggregate outstanding principal amount of the DIP Loans.

“DIP Loan Parties” means Borrower and each Guarantor; and each, a “DIP Loan Party”.

“DIP Loans” has the meaning set forth in Section 2.01(a), and includes all Protective Advances, any amounts advanced by DIP Lenders pursuant to the DIP Order, and any fees or expenses authorized by an order of the Bankruptcy Court and designated as “DIP Obligations” or a similar term therein.

“DIP Milestones”  means:

“DIP Order” shall mean a final order of the Bankruptcy Court, that, without limitation, approves the credit facility evidenced by the DIP Credit Agreement and grants the liens and security interests therein and certain other rights and protections, which order is not stayed and is otherwise in form and substance satisfactory to DIP Agent and DIP Lenders

“Disclosure Statement” means a disclosure statement file with respect to the Plan, in form and substance satisfactory to DIP Lenders.  

“Documents” means, with respect to Borrower, “documents” (as defined in Article 9 of the UCC) of Borrower.

“Environment” or “Environmental” shall have the meanings set forth in 42 U.S.C. 9601(8) (1988).

“Environmental Law” means all federal, state, and local laws, rules, regulations, ordinances, orders, decisions, agreements, and other requirements, including common law theories, now or hereafter in effect and relating to, or in connection with the Environment, health, or safety, including without limitation CERCLA, relating to (a) pollution, contamination, injury, destruction, loss, protection, cleanup, reclamation or restoration of the air, surface water, groundwater, land surface or subsurface strata, or other natural resources; (b) solid, gaseous or liquid waste generation, treatment, processing, recycling, reclamation, cleanup, storage, disposal or transportation; (c) exposure to pollutants, contaminants, hazardous, medical infections, or toxic substances, materials or wastes; (d) the safety or health of employees; or (e) the manufacture, processing, handling, transportation, distribution in commerce, use, storage or disposal of hazardous, medical infections, or toxic substances, materials or wastes.

“Equipment” means, with respect to Borrower, “equipment” (as each term is defined in Article 9 of the UCC) of Borrower.

“Equity Commitment” means the commitment of the Equity Commitment Parties set forth in the Commitment Letter to purchase Borrower’s common stock in an amount which equals a percentage between forty five percent (45.0%) or forty nine percent (49.0%) of Borrower’s total

outstanding common stock for a purchase price of $17,500,000, as set forth in the Commitment Letter.

“Equity Commitment Parties” means each of 210/RELY Partners, Goldman Sachs BDC, Inc., Goldman Sachs Private Middle Market Credit LLC and Goldman Sachs Middle Market Lending Corp.  

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“Estate Professional Fees” means the fees of all professionals employed in the Bankruptcy Case, including fees of Borrower’s bankruptcy counsel, fees of the Committee’s bankruptcy counsel, in each case as approved by the Bankruptcy Court and otherwise in a maximum amount as specified in the Approved Budget for such fees (other than fees and expenses incurred in connection with any appraisals of Collateral requested by DIP Lenders, it being understood that such fees constitute Estate Professional Fees but will not be considered in calculating variances from the Approved Budget), plus reasonable reimbursable out-of-pocket expenses.  For the avoidance of doubt, Estate Professional Fees, shall not include professional fees incurred for services provided for or on behalf of the Alloy Debtors, except to the extent such services are also provided for the benefit of the Borrower and its estate, and then only to the extent of the relative benefit provided by such services to the Borrower and its estate pursuant to the Interim Compensation Procedures Order.  

“Event of Default” has the meaning set forth in Section 7.01.

“Excluded Account”  means the deposit account with Wells Fargo Bank, National Association with account number XXXXXX3243.

“Excluded Taxes”  means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any DIP Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a DIP Lender, U.S. federal  withholding Taxes imposed on amounts payable to or for the account of such DIP Lender with respect to an applicable interest in a DIP Loan or DIP Commitment pursuant to a law in effect on the date on which (i) such DIP Lender acquires such interest in the DIP Loan or DIP Commitment or (ii) such DIP Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.07, amounts with respect to such Taxes were payable either to such DIP Lender's assignor immediately before such DIP Lender became a party hereto or to such DIP Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.07(g) and (d) any withholding Taxes imposed under FATCA.

“FATCA”  means Sections 1471 through 1474 of the Code, as of the date of this DIP Credit Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official

interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“Fiscal Year” means, with respect to Borrower, the fiscal year of Borrower.

“Fixtures” means, with respect to Borrower and each Guarantor, “fixtures” (as defined in Article 9 of the UCC) of Borrower and each Guarantor, as applicable.

“Foreign Lender” means any DIP Lender that is not a U.S. Person.

“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination.

“General Intangibles” means, with respect to Borrower and each Guarantor, “general intangibles” (as defined in Article 9 of the UCC) of Borrower and each Guarantor, as applicable.

“Goods” means, with respect to Borrower and each Guarantor, “goods” (as defined in Article 9 of the UCC) of Borrower and each Guarantor, as applicable.

“Governmental Authority”  means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.

“Guarantors” means SGGH, LLC a Delaware limited liability company and Cosmedicine LLC, a Delaware limited liability company and each newly acquired or created domestic U.S.

direct or indirect subsidiaries of Borrower (excluding for the avoidance of doubt any other debtor in the Chapter 11 Case) and “Guarantor”  means any one of them.

“Guaranty Agreement” means the Guaranty Agreement executed by each Guarantor in favor of DIP Agent and DIP Lenders, in form and substance acceptable to DIP Agent.

“Indemnified Person” has the meaning set forth in Section 8.02.

“Indemnified Taxes”  means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any DIP Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Instrument” means, with respect to Borrower and each Guarantor, an “instrument” (as defined in Article 9 of the UCC) of Borrower and each Guarantor, as applicable.

“Intellectual Property” means, with respect to any Person, all patents, trademarks, trade names, copyrights, technology, know-how and processes, and all applications therefor, used in or necessary for the conduct of business by such Person.

“Interim Compensation Procedures Order” means the Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals, filed at Docket NO. 180 on the Bankruptcy Court’s docket.

“Inventory” means, with respect to Borrower and each Guarantor, “inventory” (as defined in Article 9 of the UCC) of Borrower and each Guarantor, as applicable.

“Investment” means any investment in any Person, whether by means of acquiring or holding securities, capital contribution, loan, time deposit, advance, Guarantee or otherwise.

“Investment Property” means, with respect to Borrower and each Guarantor, “investment property” (as defined in Article 9 of the UCC) of Borrower and each Guarantor, as applicable.

“Lien” means, with respect to any asset, any mortgage, lien, adequate protection lien, pledge, charge, security interest or encumbrance of any kind, or any other type of preferential arrangement that has the practical effect of creating a security interest, in respect of such asset.

“Loan Account” has the meaning set forth in Section 2.05(b).

“Major Casualty Proceeds” means (a) the aggregate insurance proceeds received in connection with one or more related events under any property insurance policy or (b) any award or other compensation with respect to any condemnation of property (or any transfer or disposition of property in lieu of condemnation), in each case, so long as the applicable amount exceeds $1,000,000.

“Material Adverse Change” means, any condition, development or event that has resulted in, or would reasonably be expected to result in, a material adverse change in or materially adverse effect on the financial condition or results of operations of Borrower and the Guarantors (including, without limitation, a material impairment of any of Borrower’s and the Guarantors’ assets), taken

as a whole, other than the events typically resulting from the filing of the Chapter 11 Cases of the Borrower and its subsidiaries, as applicable.

“Maturity Date” means the earliest of (a) November 17, 2018, (b) the effective date of the Plan which is confirmed by an order of the Bankruptcy Court, (c) the acceleration of the DIP Loans and related termination of the commitments under the DIP Loan Documents,  including, without limitation, as a result of the occurrence of an Event of Default hereunder or a default under the DIP Order. 

“Maximum Lawful Rate” has the meaning set forth in Section 2.06(b).

“Multiemployer Pension Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any DIP Loan Party or any member of the Controlled Group may have any liability.

“Net Cash Proceeds” means, with respect to any transaction or event, an amount equal to the cash proceeds received by Borrower from or in respect of such transaction or event (including proceeds of any non-cash proceeds of such transaction), less (a) any out-of-pocket expenses reasonably incurred by Borrower in connection therewith (including any attorneys’ fees reasonably allocated thereto), and (b) in the case of an Asset Disposition, any taxes paid or payable by Borrower in respect of such Asset Disposition.

“Notes” has the meaning set forth in Section 2.04 hereof.

“Notice of Borrowing” means a written notice of a Responsible Officer, appropriately completed and in form and substance acceptable to DIP Agent, which shall include (a) the amount of the DIP Loans requested by Borrower, and (b) a written certification to the effect that (i) the proposed DIP Loans and their intended use and timing thereof are consistent with the terms of this DIP Credit Agreement and the Approved Budget, and are necessary in order to satisfy Borrower’s obligations, as applicable, in the ordinary course of business, (ii) all conditions to borrowing contained in this DIP Credit Agreement and the other DIP Loan Documents have been satisfied, and (iii) no Event of Default or Default then exists or will result from such borrowing.

“Obligations” means all obligations, liabilities and indebtedness (monetary or otherwise) of Borrower under this DIP Credit Agreement or any other DIP Loan Document, in each case howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due. The Obligations shall include, without limitation, each DIP Loan and DIP Agent Professional Fees.

“Organizational Documents” means, with respect to any Person other than a natural person, the documents by which such Person was organized (such as a certificate of incorporation, certificate of limited partnership or articles of organization, and including, without limitation, any certificates of designation for preferred stock or other forms of preferred equity) and which relate to the internal governance of such Person (such as by-laws, a partnership agreement or an operating, limited liability or members agreement).

“Other Connection Taxes”  means, with respect to any Recipient,  Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any DIP Loan Document, or sold or assigned an interest in any DIP Loan or DIP Loan Document).

“Other Taxes”  means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any DIP Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.

“Participant” has the meaning set forth in Section 9.06(b).

“Participant Register” has the meaning set forth in Section 9.06(b).

“Payment Account” means an account specified from time to time in writing by DIP Agent to Borrower into which all payments by or on behalf of Borrower to DIP Agent and DIP Lenders under the DIP Loan Documents shall be made.

“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

“Pension Plan” means any “employee pension benefit plan”, as such term is defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a Multiemployer Pension Plan) or subject to the minimum funding standards under Section 412 of the Code, and to which any DIP Loan Party or any member of the Controlled Group may have any liability.

“Permitted Contest” means a contest maintained in good faith by appropriate proceedings promptly instituted and diligently conducted and with respect to which such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; provided that compliance with the obligation that is the subject of such contest is effectively stayed during such challenge.

“Person” means any natural person, corporation, limited liability company, professional association, limited partnership, general partnership, joint stock company, joint venture, association, company, trust, bank, trust company, land trust, business trust, hedge fund or other organization, whether or not a legal entity, and any government or agency or political subdivision thereof.

“Petition Date” means November 17, 2017, which is the date upon which Borrower commenced a voluntary petition under the Bankruptcy Code.

“Plan” means a Chapter 11 plan of reorganization for Borrower, filed by Borrower and in form acceptable to DIP Lender.

“Prepayment Premium” means the greater of (x) two percent (2.0%) of the amount of the repayment and (y) an amount equal to the difference between (A) the aggregate amount of interest which would have otherwise been payable on the amount of the repayment from the date of repayment until November 17, 2018, minus (B) the aggregate amount of interest DIP Lenders would earn if the prepaid amount were reinvested for the period from the date of repayment until November 17, 2018, at the Treasury Rate plus 50 basis points.  

“Proceeds” means, with respect to Borrower, “proceeds” (as defined in Article 9 of the UCC) of Borrower.

“Property” means any right or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

“Protective Advances” has the meaning set forth in Section 2.01(a)(ii).

“Real Alloy DIP Order” means the Interim Order (I) Authorizing Debtors to Obtain Postpetition Financing Pursuant to Section 364 of the Bankruptcy Code, (II) Authorizing the Use of Cash Collateral Pursuant to Section 363 of the Bankruptcy Code, (III) Granting Adequate Protection to the Prepetition Secured Parties Pursuant to Sections 361, 362, 363 and 364 of the Bankruptcy Code, (IV) Granting Liens and Superpriority Claims, (V) Modifying the Automatic Stay, and (VI) Scheduling a Final Hearing filed at Docket No. 59 on the Bankruptcy Court’s docket, as such order may be subsequently amended or modified.

“Recipient” means DIP Agent and any DIP Lender.

“Release” means depositing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, migrating or disposing.

“Remedies Notice Period” has the meaning set forth in Section 7.02.

“Response” shall have the meaning set forth in CERCLA or under any other Environmental Law.

“Responsible Officer” means, with respect to Borrower, any of the following officers of Borrower: chief executive officer, president, chief operating officer, chief investment officer or chief financial officer.

“Restricted Distribution” means, as to any Person, (a) any dividend or other distribution on any equity interest in such Person (except those payable solely in its equity interests of the same class), or (b) any payment on account of (i) the purchase, redemption, retirement, defeasance, surrender or acquisition of any equity interests in such Person or any claim respecting the purchase of sale of any equity interest in such Person, or (ii) any option, warrant or other right to acquire any equity interests in such Person.

“Sale/Leaseback” means any arrangement under which title to any property or asset, or an interest therein, in transferred by a Person (the “Seller”) to some other Person which leases or otherwise gives or grants the right to use such property or asset or interest therein to the Seller, whether or not in connection therewith the Seller also acquires a right or is subject to an obligation

to re-acquire the property, asset or interest, and regardless of the accounting treatment of such arrangement.

“SAMCO Investment Asset” means the participation interest owned by SGGH, LLC in a securitized pool of commercial mortgages.

“SEC Filing” means filings made on Forms 10-Q, 10-K, 8-K and similar forms to the Securities and Exchange Commission pursuant to the Securities and Exchange Act of 1934, as amended.

“Security Agreements” means each pledge and security agreement executed by a DIP Loan Party in favor of DIP Agent, for the benefit of DIP Lenders, in form and substance acceptable to DIP Agent.

“Security Documents” means (a) any agreement, document or instrument heretofore executed, executed concurrently herewith or executed at any time hereafter pursuant to which Borrower,  the Guarantors or any other Person provides, as security for all or any portion of the Obligations, a Lien on any of its assets in favor of DIP Agent, for the benefit of DIP Lender,  including, without limitation, the Security Agreements and any financing statement filed in connection therewith,  as any or all of the same may be amended, supplemented, restated or otherwise modified from time to time, and (b) the DIP Order .

“Specified Events” means the sale of art owned by a Guarantor; the collection of tax refunds by Borrower or any Guarantor; or the sale, liquidation or payment of the SAMCO Investment Asset.

“Stated Rate” has the meaning set forth in Section 2.02(a).

“Statements and Schedules” means the “Statement of Financial Affairs for Real Industry, Inc.” originally filed at Docket No. 226 on the Bankruptcy Court’s Docket (as may be amended), and the “Schedule of Assets and Liabilities for Real Industry, Inc.” originally filed at Docket No. 227 on the Bankruptcy Court’s Docket (as may be amended).  

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Borrower.

“Supporting Obligations” means, with respect to Borrower, “supporting obligations” (as defined in Article 9 of the UCC) of Borrower.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority,  including any interest, additions to tax or penalties applicable thereto.

“Termination Date” has the meaning set forth in Section 2.01(c).

“Termination Event” means the occurrence of any of the following:

“Treasury Rate” means the yield to maturity at a time of computation of United States Treasury securities with a constant maturity (as determined by DIP Agent in good faith based on publicly available market data) most nearly equal to the period from the applicable prepayment date to the Maturity Date;  provided, however, that if the period from the applicable prepayment date to the Maturity Date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given.

“UCC” means the Uniform Commercial Code of the State of New York or of any other state the laws of which are required to be applied in connection with the perfection of security interests in any Collateral.

“Upfront Fees” means $200,000 paid to the DIP Lenders upon the Closing Date.

“U.S. Person”  means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

“U.S. Trustee” means the Office of the United States Trustee.

“Withholding Agent” means Borrower and DIP Agent.

Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder (including, without limitation, determinations made pursuant to the exhibits hereto) shall be made, and all financial statements required to be delivered hereunder, shall be prepared on a consolidated basis in accordance with GAAP;  provided that if (a) Borrower shall object to determining compliance with the provisions of this DIP Credit Agreement on such basis by written notice delivered to DIP Agent and DIP Lenders at the time of delivery of required financial statements due to any change in GAAP or the rules promulgated with respect thereto, or (b) a  DIP Lender shall so object by written notice delivered to Borrower within sixty (60) days after delivery of such financial statements, then such calculations shall be made on a basis consistent with the most recent financial statements delivered by Borrower to DIP Agent and DIP Lenders as to which no such objection shall have been made. All amounts used for

purposes of financial calculations required to be made herein shall be without duplication.  For the avoidance of doubt, this Section 1.02 shall not apply to the Approved Budget.

References in this DIP Credit Agreement to “Articles,” “Sections,” “Annexes” or “Exhibits” shall be to Articles, Sections, Annexes or Exhibits of or to this DIP Credit Agreement unless otherwise specifically provided. Any term defined herein may be used in the singular or plural. “Include,” “includes” and “including” shall be deemed to be followed by “without limitation”. Except as otherwise specified herein, references to any Person include the successors and assigns of such Person.  References “from” or “through” any date mean, unless otherwise specified, “from and including” or “through and including,” respectively. References to any statute or act shall include all related current regulations and all amendments and any successor statutes, acts and regulations.

Nothing set forth in the Approved Budget or this DIP Credit Agreement shall be deemed to evidence DIP Agent’s or DIP Lenders’ consent to: (a) Borrower’s assumption or rejection of any executory contract under Section 365 of the Bankruptcy Code; or (b) payments made by Borrower with respect to executory contracts or leases. All rights of DIP Agent and DIP Lenders to object to any such assumption, rejection or payments by Borrower are hereby expressly reserved.

To the extent requested by any DIP Lender, the Commitment Amount of such DIP Lender shall be evidenced by a promissory note executed by Borrower in favor of such DIP Lender (each, a “Note”) in an original principal amount equal to such DIP Lender’s Commitment Amount.

Each DIP Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and DIP Agent in writing of its legal inability to do so.

To induce DIP Agent and DIP Lenders to enter into this DIP Credit Agreement and to make the DIP Loans contemplated hereunder, Borrower hereby represents and warrants to DIP Agent and DIP Lenders that:

Borrower and each of the Guarantors has the organizational power and authority, and the legal right to make, deliver and perform the DIP Loan Documents.  Borrower and each of the Guarantors have taken all necessary action under its organizational documents and material debt agreements (other than as a result of the commencement of the Chapter 11 Case) to authorize the

execution, delivery and performance of the DIP Loan Documents. The DIP Loan Documents have been duly executed and delivered on behalf of Borrower and each of the Guarantors. The DIP Loan Documents upon execution will constitute, a legal, valid and binding obligation of Borrower and each of the Guarantors, enforceable against Borrower and each of the Guarantors in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

The execution, delivery and performance of the DIP Loan Documents, the extension of credit thereunder and the use of proceeds thereof will not violate law or any material contractual obligation, including any post-petition agreement, of Borrower and each of the Guarantors and will not result in, or require, the creation or imposition of any lien on any of their respective properties or revenues pursuant to any requirement of law or any such contractual obligation, other than liens created under the DIP Loan Documents and the DIP Order. No applicable law or contractual obligation applicable to Borrower and each of the Guarantors could reasonably be expected to have a Material Adverse Change.

Borrower and each Guarantor is the lawful owner of, has good and marketable title to and is in lawful possession of, or has valid leasehold interests in, all material properties and other assets (real or personal, tangible, intangible or mixed) purported to be owned or leased (as the case may be) by Borrower or each Guarantor, as applicable, and such properties and assets are free and clear of all Liens, except those permitted under Section 5.02 hereto.

Borrower is not an “investment company” or a company “controlled” by an “investment company” or a “subsidiary” of an “investment company,” all within the meaning of the Investment Company Act of 1940.

Borrower and each of the Guarantors has timely filed or caused to be timely filed all material foreign, national, state and local income and other material tax returns that are required to be filed (taking into account all proper extensions) and has timely paid all material income Taxes and other material taxes required to be paid and paid any assessments made against it or any of its property and all other material income taxes and other material taxes, fees or other charges imposed on it or any of its property by any governmental authority (other than any taxes, fees or other charges the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of Borrower and each of the Guarantors, as the case may be); no tax lien has been filed, and, to the knowledge of Borrower or any Guarantor, no claim is being asserted, with respect to any tax, fee or other charge owed by Borrower or any Guarantor except to the extent that the

amount in question is not in excess of $50,000. Under the laws of its relevant jurisdiction it is not necessary that any stamp, registration, notarial or similar taxes or fees be paid on or in relation to the DIP Loan Documents or the transactions contemplated by the DIP Loan Documents, excluding fees in connection with Collateral related filings.

The Approved Budget and each other budget or cash flow projection at the time prepared and delivered to DIP Lenders was prepared by Borrower’s financial personnel and represents the good faith belief of such Persons at such time as to the probable course of Borrower’s businesses and financial affairs, over the periods shown therein, subject to the assumptions stated therein. Borrower has not failed to disclose any material assumptions or liabilities or any other material information with respect to the Approved Budget or the accuracy of such Approved Budget.  Borrower has provided a written affirmation made by an appropriate financial officer of Borrower to DIP Agent affirming the reasonableness of each of the assumptions and projections in the Approved Budget.

After due inquiry by the Responsible Officers, there is no known fact that Borrower has not disclosed to DIP Lenders that could reasonably be expected to result in a Material Adverse Change.  No statement or information, including information concerning Borrower’s tax attributes (including the amount of net operating loss carryforwards of Borrower and the Guarantors, any limitations on the use thereof under section 382 of the Internal Revenue Code, and the degree to which past transactions could contribute to an “ownership change” of Borrower within the meaning of section 382 of the Internal Revenue Code), contained in any DIP Loan Document, or any other document, certificate or statement furnished by or on behalf of Borrower or any of the Guarantors to DIP Lenders, or any of them, for use in connection with the transactions

contemplated by the DIP Loan Documents, contained as of the date such statement, information, document or certificate was so furnished, when taken as a whole, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein not misleading in the light of the circumstances under which such statements were made (after giving effect to all supplements and updates thereto).

No consent, approval or authorization of, or filing, registration or qualification with, any governmental authority or any other Person is required to be obtained or completed by Borrower in connection with the execution, delivery or performance of any of the DIP Loan Documents which has not already been obtained or completed, other than the consents, authorizations and approvals of the Bankruptcy Court.

Other than the Chapter 11 Case,  and except as otherwise disclosed in the Statements and Schedules or in any SEC Filing or any publicly available filings made in connection with the Chapter 11 Case, no litigation, investigation or proceeding of or before any arbitrator or governmental authority (not stayed by reason of the Chapter 11 Case) is pending or, to the knowledge of Borrower and each of the Guarantors, threatened by or against Borrower and each of the Guarantors or against any of their respective properties or revenues (a) with respect to any of the DIP Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Change.

Borrower agrees that, so long as any DIP Loan is outstanding or other Obligations remain unpaid:

Borrower will maintain a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in accordance with GAAP and to provide the information required to be delivered to DIP Lenders hereunder, and will deliver to DIP Agent (who will delivery to DIP Lenders):

Financial statements required to be delivered pursuant to this Section 4.01 (to the extent any such financial statements are included in materials otherwise filed with the SEC) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (EDGAR); or (ii) on which such financial statements are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each DIP Lender and DIP Agent have access (whether a commercial, third-party website or whether sponsored by DIP Agent); provided that:  (A) upon written request by DIP Agent,  Borrower shall deliver paper copies of such financial statements to DIP Agent or any DIP Lender upon its request to Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by DIP Agent or such DIP Lender and (B) Borrower shall notify DIP Agent and each DIP Lender (by telecopier or electronic mail) of the posting of any such financial statements and provide to DIP Agent by electronic mail electronic versions (i.e., soft copies) of such financial statements. 

Borrower (a) will pay and discharge, at or before maturity, all of its obligations and liabilities, including tax liabilities, except for such obligations and/or liabilities which are not provided to be paid in the Approved Budget, are the subject of a Permitted Contest, or are otherwise effectively stayed by the Chapter 11 Case, or the nonpayment or nondischarge of which could not reasonably be expected to have a Material Adverse Change, and all obligations under the Approved Budget,  (b) will maintain, in accordance with GAAP and to the extent provided in the Approved Budget, appropriate reserves for the accrual of all of their respective obligations and liabilities, and (c) will not breach, or permit to exist any default under, the terms of any lease, commitment, contract, instrument or obligation to which it is a party, or by which its properties or assets are bound, except to the extent that the failure to do any of the above could not reasonably

be expected to have a Material Adverse Change or is otherwise effectively stayed under the Chapter 11 Case or which will be rejected or have been rejected in the Chapter 11 Case.

Borrower will continue to engage in business of the same general type as it now conducts (except to the extent otherwise contemplated on the Closing Date and reflected in the Approved Budget) and will preserve, renew and keep in full force and effect its existence and its rights, privileges and franchises necessary or desirable in the normal conduct of its business.

Borrower shall comply in all respects, after entry thereof, with all requirements and obligations set forth in the DIP Order, “first day” orders and “second day” orders, as each order is amended and in effect from time to time in accordance with the Commitment Letter and the DIP Loan Documents, as applicable

Borrower shall comply with all applicable laws, ordinances, rules, regulations, and requirements of governmental authorities, including all Environmental Laws, except as otherwise permitted by the Bankruptcy Court or where the noncompliance with which could not reasonably be expected to have a Material Adverse Change.

Borrower will keep proper books of record and account in accordance with GAAP in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities, and will permit, at its sole cost representatives of DIP Lenders to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, to conduct a collateral audit and analysis of the Collateral and to discuss their respective affairs, finances and accounts with its officers, employees and independent public accountants as often as may be warranted in the reasonable credit judgment of DIP Lenders. In the absence of an Event of Default,  DIP Lenders exercising any rights pursuant to this Section 4.06 shall give Borrower one (1) Business Day’s prior notice of such exercise. No notice shall be required during the existence and continuance of any Event of Default.  DIP Lenders’ access to Borrower’ books and records shall not be deemed to be a waiver of the attorney-client privilege by Borrower with respect to any books and records subject to the attorney-client privilege or other applicable privilege.

Subject to the Approved Budget,  Borrower will use the proceeds of the DIP Loans to fund general working capital, operational expenses and restructuring expenses of Borrower, solely to the extent permitted by the DIP Order, the Approved Budget and the DIP Loan Documents, as applicable. For the avoidance of doubt, no proceeds of the DIP Loans or proceeds of any Collateral may be used to pay fees of any professional other than the Estate Professional Fees.  The proceeds of the DIP Loans shall not be used by Borrower to assert or prosecute any claim, demand, or cause of action against DIP Lenders,  including, in each case, without limitation, any action, suit, or other

proceeding for breach of contract or tort or pursuant to Sections 105, 510, 544, 547, 548, 549, 550, or 552 of the Bankruptcy Code, or under any other applicable law (state, federal, or foreign), or otherwise. Except as set forth in the DIP Order, in no event and notwithstanding any other provision of this DIP Credit Agreement or other DIP Loan Document, shall any portion of the DIP Loans or the Collateral be used to (A) permit Borrower, the Committee, any other party-in-interest or their respective representatives or Affiliates to challenge, object to or otherwise contest or commence any contested matter, adversary proceeding or action in any court to determine (1) the validity, perfection or priority of security interests on assets of Borrower in favor of DIP Agent, for the benefit of DIP Lenders or (2) the enforceability of the obligations of Borrower under the DIP Loan Documents, or (B) fund acquisitions, capital expenditures, capital leases or other transactions not in the ordinary course of Borrower’s business.

Borrower will, at its own cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered after the Closing Date (and in any event within the time period requested by DIP Lenders) all such further acts, documents (including, without limitation, assignments, certificates, supplemental documents, mortgages, leasehold mortgages, landlord waivers, surveys, title searches, title policies and financing statements) and assurances as may from time to time be necessary or as DIP Lenders may from time to time reasonably request in order to carry out the intent and purposes of the DIP Loan Documents and the transactions contemplated thereby, including all such actions to establish, preserve, protect and perfect a first priority Lien (subject only to liens permitted hereunder) in favor of DIP Agent, for the benefit of DIP Lenders, on the Collateral (including Collateral acquired after the date hereof), including on any and all assets of Borrower, whether now owned or hereafter acquired.  Notwithstanding anything to the contrary in this DIP Credit Agreement, such costs and expenses incurred under this Section 4.08 will not be considered in calculating variances from the Approved Budget.

Borrower will cooperate with DIP Agent,  DIP Lenders and their advisors in providing to DIP Agent and DIP Lenders and such advisors such information as is reasonably necessary in order to permit DIP Agent and DIP Lenders and such advisors to evaluate the Approved Budget and other budgets and cash flow projections delivered hereunder, and to prepare periodic reconciliations of Borrower’ actual performance to its performance projected in the Approved Budget and such other budgets and cash flow projections.

Borrower agrees that, so long as any DIP Loan is outstanding or other Obligations remain unpaid:

Except for the Real Alloy DIP Order and the loan documents to the extent approved thereunder, and to the extent not inconsistent with the DIP Order,  Borrower will not, and will not permit any Guarantor to, directly or indirectly, create, incur, assume, guarantee or otherwise become or remain directly or indirectly liable with respect to, any Debt, or any contingent obligations that would be Debt hereunder if they were non-contingent, except for:

Except for the Real Alloy DIP Order and the loan documents to the extent approved thereunder, and to the extent not inconsistent with the DIP Order,  Borrower will not, and will not permit any Guarantor to, directly or indirectly, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:

Borrower will not, and will not permit any Guarantor to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Distribution, except for any Restricted Distribution made by a Guarantor to Borrower or any other Guarantor.

Except for the Real Alloy DIP Order and the loan documents to the extent approved thereunder, and to the extent not inconsistent with the DIP Order,  Borrower will not, and will not permit any Guarantor to, directly or indirectly, declare, pay, make or set aside any amount for payment in respect of, or materially modify the terms of, any subordinated or other prepetition Debt owed by Borrower or any Guarantor.    

Except  as may be approved by the Bankruptcy Court with respect to the Alloy Debtors,  Borrower will not, and will not permit any Guarantor to, directly or indirectly, (a)  sell, lease, license or otherwise transfer, directly or indirectly, any of its assets or all or substantially all of its assets or consolidate or merge with any other Person, or (b) enter into any Sale/Leaseback transaction unless DIP Agent shall have approved any such sale, consolidation, merger or Sale/Leaseback in writing, other than (i) the Plan and, to the extent permitted by the Bankruptcy Court, any other corporate reorganization, (ii) any other sales of assets permitted by the applicable order of the Bankruptcy Court and not otherwise prohibited by the DIP Loan Documents,  and (iii) sales of assets made to comply with any order of any governmental authority or any applicable laws and sales of Cash Equivalents.

Borrower will not, and will not permit any Guarantor to, directly or indirectly, acquire any assets other than in the ordinary course of business which shall also be in accordance with the Approved Budget.  Borrower will not, and will not permit any Guarantor to, directly or indirectly, make, acquire or own any Investment in any Person, other than (a) Cash Equivalents;  (b) bank deposits established in accordance with Section 5.15; and (c) Investments necessary in connection with Borrower’s plan of reorganization subject to the consent of DIP Lenders, not to be unreasonably withheld or delayed. Without limiting the generality of the foregoing, Borrower will not, and will not permit any Guarantor to (x) engage in any joint venture or partnership with any other Person or (y) acquire or create any direct Subsidiary other than any Subsidiary, the creation of which is provided for by a Bankruptcy Court order issued in connection with a sale of the Alloy Debtors and which creation does not materially and adversely affect the interests of DIP Lenders in Borrower, any Guarantor or the Collateral.  For the avoidance of doubt, nothing in this Section shall prohibit or restrict any transaction of any Alloy Debtor or its Subsidiaries.

Except for transactions that are disclosed to DIP Lenders in writing in advance of being entered into and which contain terms that are no less favorable to Borrower  than those which might be obtained from a third party, Borrower will not, and will not permit any Guarantor to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of Borrower or any Guarantor, other than (a) any transaction among Borrower and a Guarantor;  (b) ordinary course administration and transactions by Borrower with any of the Alloy Debtors;  (c) any transactions in connection with the reorganization of Borrower, subject to the consent of DIP Lenders (not to be unreasonably withheld or delayed); and (d) transactions in existence on the Closing Date and any similar transaction among Borrower and the Guarantors as consistent with past practice.

Borrower will not, and will not permit any Guarantor to directly or indirectly, amend or otherwise modify any of its Organizational Documents, except for such amendments or other modifications required by law in connection with the Chapter 11 Case and fully disclosed to DIP Lenders, or such amendments or modifications as may be permitted or required by a Plan.  

Borrower will not, and will not permit any Guarantor to change its Fiscal Year.

Borrower will not, and will not permit any Guarantor to, directly or indirectly, engage in any line of business other than those businesses engaged in on the Closing Date and businesses reasonably related thereto and will not take any action to materially impair assets of Borrower,  including with respect to the availability of any tax attributes of Borrower, without the prior written consent of DIP Lenders.

Borrower will not, and will not permit any Guarantor to, change its corporate name, identity, or its jurisdiction of formation or organization.

Except to the extent consistent with the Cash Management Order and/or the Real Alloy DIP Order and the loan documents approved thereunder, Borrower will not, directly or indirectly, and will not permit any Guarantor to: (a) establish any new bank account without prior written notice to DIP Lenders and unless DIP Agent,  Borrower and the bank at which the account is to be opened enter into a Deposit Account Control Agreement regarding such bank account pursuant to which such bank acknowledges the security interest of DIP Agent, for the benefit of DIP Lenders, in such bank account, agrees to comply with instructions originated by DIP Agent directing disposition of the funds in the bank account without further consent from Borrower or any Guarantor as applicable, on terms satisfactory to DIP Agent; or (b) without the approval of DIP

Agent, otherwise change its cash management processes and procedures from those set forth on the Closing Date.

Except as may be approved by the Bankruptcy Court with respect to the Alloy Debtors,  Borrower will not, and will not permit any Guarantor to, engage in any hedging or similar transactions, unless otherwise approved by DIP Agent.

Borrower shall not make any payment of any proceeds constituting part of the Collateral or other cash (including, without limitation, proceeds of DIP Loans)  (a) to any holder of an allowed claim under or pursuant to Section 503(b)(9) of the Bankruptcy Code, or (b) to any unsecured creditor of Borrower on account of claims arising prior to the commencement of the Chapter 11 Case (including, without limitation, payments in respect of reclamation claims of unpaid suppliers of goods delivered to Borrower prior to the commencement of the Chapter 11 Case (regardless of whether such claims have been granted administrative expense priority status pursuant to Section 546(c) of the Bankruptcy Code)), except upon ten (10) days prior written notice to DIP Lenders and so long as such payments are specifically provided in the Approved Budget.

On and after the Closing Date, neither Borrower nor any member of the Controlled Group shall (i) make any payments with respect to any Pension Plan or Multiemployer Pension Plan,  including payment of expenses, unless otherwise required by law or permitted by the Bankruptcy Court;  (ii) contribute to or assume an obligation to contribute to, any Multiemployer Pension Plan;  (iii) acquire an interest in any Person that causes such Person to become a member of the Controlled Group if such Person sponsors, maintains or contributes to, or at any time in the six-year period preceding such acquisition has sponsored, maintained, or contributed to any plan that is subject to Title IV of ERISA or Section 412 of the Code;  (iv) contribute to or assume an obligation to contribute to any employee welfare benefit plan, as defined in Section 3(1) of ERISA,  including, without limitation, any such plan maintained to provide benefits to former employees of such entities, that may not be terminated by such entities in their sole discretion at any time without any liability; or (v) engage in any transaction in connection with which it could be subjected to either a civil penalty assessed pursuant to Section 502(c), (i) or (l) of ERISA or a tax imposed by Section 4975 of the Code.

Borrower shall not hold estate funds or property other than the DIP Loans proceeds or Collateral in Borrower’s Account.  Borrower shall not make disbursements from Borrower’s Account, other than disbursements in accordance with the Approved Budget.

The obligation of DIP Lenders to make the initial DIP Loan is subject to the satisfaction of the following conditions precedent to the satisfaction of DIP Lenders in their sole discretion:

The obligation of DIP Lenders to make each additional DIP Loan is subject only to the satisfaction of the conditions precedent set forth in clauses (a), (c) and (i) through (o) this Article VI.    Each Borrowing and each giving of a Notice of Borrowing hereunder shall be deemed to be a representation and warranty by Borrower on the date of such borrowing or notice as to the facts specified in clauses (j), (k),  (l),  and (m) above.

For purposes of the DIP Loan Documents, the occurrence of any of the following conditions and/or events, whether voluntary or involuntary, by operation of law or otherwise, shall constitute an “Event of Default” solely to the extent Borrower shall have received written notice thereof from DIP Agent or any DIP Lender (which notice shall have been filed with the Bankruptcy Court), and shall have failed to cure such condition or event, as applicable, within five (5) days of receipt of such notice:

Upon the occurrence of an Event of Default and until the Event of Default has been waived pursuant to the terms hereof, DIP Agent may, or at the direction of DIP Lenders shall, (a) suspend or terminate the DIP Commitment, in whole or in part, and/or (b) declare the Obligations to be, and the Obligations shall thereupon become, immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by Borrower and Borrower will pay the same,  including, for the avoidance of doubt, the Prepayment Premium. Without limiting the foregoing, following acceleration of the Obligations (or any portion thereof)

after DIP Agent gives the DIP Loan Parties five (5) Business Days’ notice (the “Remedies Notice Period”) of its intent to exercise remedies, which notice may be given simultaneously to the Bankruptcy Court, the automatic stay provided in Section 362 of the Bankruptcy Code shall be deemed automatically vacated without further action or order of the Bankruptcy Court, and DIP Agent, on behalf of and for the benefit of DIP Lenders,  shall have relief from the automatic stay and have the ability, after the Remedies Notice Period, to exercise, or refrain from exercising, any and all rights available to it pursuant to the DIP Loan Documents and applicable law,  including foreclosing on all or any portion of the Collateral, collecting accounts receivable and applying the proceeds thereof to the Obligations or otherwise exercising remedies against the Collateral permitted by applicable law, in each case without any further order of the Bankruptcy Court.  During the Remedies Notice Period,  Borrower shall be entitle to seek an emergency hearing before the Bankruptcy Court;  provided that Borrower acknowledges that the only issue that may be raised as such hearing shall be whether an Event of Default has occurred and is continuing.  Borrower and each DIP Lender acknowledge and agree that subject to Section 363(k) of the Bankruptcy Code,  DIP Agent shall have the authority to credit bid all or a portion of the Obligations owed under the DIP Loan Documents, whether pursuant to a sale under Section 363 of the Bankruptcy Code, a plan pursuant to section 1129(b) of the  Bankruptcy Code or otherwise.

Effective immediately upon the occurrence of an Event of Default and until the Event of Default has been waived pursuant to the terms hereof, the DIP Loans and other Obligations shall bear interest at rates that are two percent (2.0%) per annum in excess of the rates otherwise payable under this DIP Credit Agreement.

Upon the occurrence of an Event of Default and until the Event of Default has been waived pursuant to the terms hereof, DIP Agent and DIP Lenders are hereby authorized by Borrower at any time or from time to time, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived), to set off and to appropriate and to apply any and all amounts or balances held by DIP Agent or any DIP Lender for the account of Borrower (regardless of whether such balances are then due to Borrower), and other property at any time held or owing by DIP Agent and DIP Lenders to or for the credit or for Borrower’ account, against and on account of any of the Obligations.  Borrower agree, to the fullest extent permitted by law, that DIP Agent and DIP Lenders may exercise their right to set off with respect to the Obligations as provided in this Section 7.04.

Notwithstanding anything to the contrary contained in this DIP Credit Agreement (other than Section 2.03 above), subject to the DIP Order (a) Borrower irrevocably waives the right to direct the application of any and all payments at any time or times received by DIP Agent and DIP Lenders from or on behalf of Borrower of all or any part of the Obligations, and DIP Agent shall have the continuing and exclusive right to apply and to reapply any and all payments received at any time or times against the Obligations in such manner as DIP Agent may deem advisable notwithstanding any previous application by DIP Agent (provided,  that as among DIP Lenders,  

for so long as no Event of Default exists, all accrued and unpaid interest and unpaid costs, fees and expenses, to the extent due and payable in cash hereunder, shall be satisfied with payments made by Borrower, prior to the satisfaction of any principal Obligations) and (b) the proceeds of any sale of, or other realization upon, all or any part of the Collateral and all payments and distributions made by Borrower with respect to the Obligations, shall be applied: first, to all fees, costs, indemnities and expenses incurred by or owing to DIP Agent and DIP Lenders, with respect to this DIP Credit Agreement, the other DIP Loan Documents or the Collateral;  second, to accrued and unpaid interest on the Obligations (including any interest which but for the provisions of the Bankruptcy Code, would have accrued on such amounts) to the extent attributable to the DIP Loan;  third, to the principal amount of the Obligations outstanding with respect to the DIP Loan,  fourth, to accrued and unpaid interest on the Obligations (including any interest which but for the provisions of the Bankruptcy Code, would have accrued on such amounts) to the extent not paid under clause second above, and fifth, to any other indebtedness or obligations of Borrower owing to DIP Agent and DIP Lenders under the DIP Loan Documents,  including, without limitation, Prepayment Premiums,  fees, costs, indemnities and expenses thereunder not paid pursuant to the foregoing clauses. Any balance remaining shall be delivered to whomever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct.

Borrower shall pay (a) all reasonable fees, costs and expenses of DIP Agent (including, without limitation, all DIP Agent Professional Fees)  in connection with the examination, review, due diligence investigation, documentation, negotiation, closing and syndication of the transactions contemplated by the DIP Loan Documents, in connection with the performance by DIP Agent and DIP Lenders and such holders of their respective rights and remedies under the DIP Loan Documents, and in connection with the continued administration of the DIP Loan Documents (including any amendments, modifications, consents and waivers to and/or under any and all DIP Loan Documents), (b) without limitation of the preceding clause (a), all costs and expenses of DIP Agent or its designee in connection with the creation, perfection and maintenance of Liens pursuant to the DIP Loan Documents,  including title investigations, (c) without limitation of the preceding clauses (a) and (b), expenses of DIP Agent or its designee in connection with the Chapter 11 Case (including attorneys’ fees and expenses incurred in connection with any action to lift the automatic stay of Section 362 of the Bankruptcy Code, any other action or participation by DIP Agent or its designee or any such holder in the Chapter 11 Case, or any other action or participation by DIP Agent or its designee in a suit or proceeding brought in a venue other than the Bankruptcy Court, or any defense or participation by DIP Agent or its designee or any such holder in any action or suit related to Borrower with respect to DIP Agent or DIP Lender’s liability or other actions in the Chapter 11 Case involving DIP Agent,  DIP Lenders or their designee or any such holder), (d) without limitation of the preceding clauses (a),  (b), and (c), expenses of DIP Agent or its designee in connection with protecting, storing, insuring, handling, maintaining or selling any Collateral and in connection with any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and all of the DIP Loan Documents, and (e) all costs and expenses incurred by DIP Agent in connection with any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and all DIP Loan Documents

(collectively, the “DIP Expenses”).  Unless paid by Borrower in immediately available funds, all DIP Expenses shall be paid ratably by DIP Lenders and such DIP Expenses shall increase the Obligations.  DIP Agent shall provide summary invoices of the DIP Expenses to the U.S. Trustee and Borrower, who shall thereafter have ten (10) days following receipt of such DIP Expenses to object to the reasonableness thereof.  If no party objects to such summary invoices, the fees and expenses shall increase the DIP Obligations. If a party objects to a portion of any summary invoices of DIP Expenses, the remaining amounts due under summary invoice for such DIP expenses shall be added to the DIP Obligations. If the parties are unable to resolve the objection to any portion of the remaining amounts due under a summary invoice, DIP Agent may file an application requesting approval of the remaining fees with the Bankruptcy Court. Notwithstanding the forgoing, none of DIP Agent’s or DIP Lenders’ costs, fees, charges, or expenses shall be required to be maintained in accordance with the United States Trustee guidelines or file any interim or final fee application with the Bankruptcy Court.

In the event that DIP Agent,  DIP Lenders and/or one or more of their managed funds, or any of the partners, directors or equivalents, agents and employees, as the case may be, of DIP Agent of any DIP Lender (each, an “Indemnified Person”) becomes involved in any capacity in any action, proceeding or investigation brought by or against any person or entity, including any of Borrower’s affiliates, shareholders, partners, members or other equity holders of Borrower or any of its affiliates, but excluding any Indemnified Person, in connection with or as a result of either this DIP Credit Agreement or any matter referred to in the Commitment Letter,  Borrower and each Guarantor agrees to periodically reimburse such Indemnified Person for its legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith. Borrower also agrees to indemnify and hold each Indemnified Person harmless against any and all losses, claims, damages or liabilities to any such person or entity in connection with or as a result of either this DIP Credit Agreement or any matter referred to in the Commitment Letter (whether or not such investigation, litigation, claim or proceeding is brought by Borrower,  Borrower’s equity holders or creditors, but excluding any Indemnified Person, and whether or not any such Indemnified Person is otherwise a party thereto and without regard to the exclusive or contributory negligence of any such Indemnified Person), except to the extent that such loss, claim, damage or liability has been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of an Indemnified Person in performing the services that are the subject of this DIP Credit Agreement  or any matter referred to in the Commitment Letter or from a DIP Lender’s breach of this DIP Credit Agreement. If for any reason the foregoing required indemnification is unavailable to any Indemnified Person or insufficient to hold it harmless, then Borrower will contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage, penalty, expense or liability in such proportion as is appropriate to reflect the relative economic interests of (i) Borrower and the Guarantors and their respective affiliates, shareholders, partners, members or other equity holders on the one hand and (ii) such Indemnified Person on the other hand in the matters contemplated by this DIP Credit Agreement and the Commitment Letter as well as the relative fault of (x) Borrower and the Guarantors and their respective affiliates, shareholders, partners, members or other equity holders on the one hand and (y) such Indemnified Person with respect to such loss, claim, damage, penalty, expense or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of Borrower under this Section 8.02 will

be in addition to any liability which Borrower may otherwise have, will extend upon the same terms and conditions to any affiliate of any Indemnified Person and the partners, members, directors, agents, employees and controlling persons or entities (if any), as the case may be, of such Indemnified Person and any such affiliate, and will be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of Borrower, any Indemnified Person, any such affiliate and any such person.  Borrower also agrees that neither any Indemnified Person nor any of such affiliates, partners, members, directors, agents, employees or controlling persons will have any liability based on its or their exclusive or contributory negligence or otherwise to Borrower or any person or entity asserting claims on behalf of or in right of Borrower or any other person or entity in connection with or as a result of either this DIP Credit Agreement or any matter referred to in the Commitment Letter, except in the case of Borrower to the extent that any losses, claims, damages, penalties, liabilities or expenses incurred by Borrower or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of an Indemnified Person in performing the services that are the subject of this DIP Credit Agreement or the other matters contemplated by the Commitment Letter;  provided, however, that in no event will such Indemnified Person or such other parties have any liability for any indirect, consequential, special or punitive damages in connection with or as a result of such Indemnified Person’s or such other parties’ activities related to this DIP Credit Agreement or the other matters contemplated by the Commitment Letter. The provisions of this Section 8.02 will survive any termination of this DIP Credit Agreement or completion of the other matters contemplated by the Commitment Letter.

If Borrower fails to perform any obligation hereunder or under any other DIP Loan Document,  DIP Agent itself may (but shall not be obligated to), upon notice to Borrower and DIP Lenders, cause such obligation to be performed at Borrower’s expense and Borrower agrees to reimburse DIP Agent therefor on demand. All amounts owing hereunder or under any other DIP Loan Document may be satisfied in full, subject to the provisions of Section 2.01(a)(ii), through the making of Protective Advances.

All agreements, representations and warranties made herein and in every other DIP Loan Document shall survive the execution and delivery of this DIP Credit Agreement and the other DIP Loan Documents. The indemnities and agreements set forth in Article VIII shall survive the payment of the Obligations and any termination of this DIP Credit Agreement.

No failure or delay by DIP Agent or DIP Lenders in exercising any right, power or privilege under any DIP Loan Document shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein and therein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

All notices, requests and other communications to any party hereunder shall be in writing (including prepaid overnight courier, facsimile transmission, or other electronic means) and shall be given to such party at its address, e-mail address or facsimile number set forth on Annex C hereto or at such other address, e-mail address or facsimile number as such party may hereafter specify for the purpose by notice to DIP Agent,  DIP Lenders and Borrower. Each such notice, request or other communication shall be effective (a) if given by facsimile, when such notice is transmitted to the facsimile number specified by this Section,  (b) if given by e-mail, upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement)  or (c) if given by mail, prepaid overnight courier or any other means, when received at the applicable address specified by this Section. Notice required to be sent hereunder to the Committee shall be sent by facsimile.

In case any provision of or obligation under this DIP Credit Agreement or any other DIP Loan Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

Neither the amendment or waiver of any provision of this DIP Credit Agreement or any other DIP Loan Document, nor the consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower and DIP Agent, and each such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which it is given; provided, that (x) no amendment, waiver or consent shall, unless in writing and signed by all DIP Lenders directly affected thereby, do any of the following: (a) modify the DIP Commitments or subject DIP Lenders to any additional obligations in excess of the Commitment Amount or any other obligation expressly set forth herein, (b) except as otherwise expressly provided in this DIP Credit Agreement, reduce the principal of, or interest on, any Note or any fees or indemnification hereunder, (c) postpone any date fixed for any payment in respect of principal of, or interest on, any Note or any fees hereunder, (d) change the Commitment Percentages, (e) amend or waive this Section 9.05, (f) except as otherwise expressly provided in this DIP Credit Agreement, and other than in connection with the financing, refinancing, sale or other disposition of any Property of Borrower permitted under this DIP Credit Agreement,  release all or substantially all of the Liens in favor of DIP Agent on any portion of the Collateral, or (g) release or compromise the obligations of Borrower to any DIP Lender, and (y) no amendment, waiver or consent shall, unless in writing signed by DIP Lenders holding more

than fifty percent of the DIP Commitment, modify the Approved Budget in any material respect (as materiality shall be determined by such DIP Lenders).  Notwithstanding any of the foregoing to the contrary, the consent of Borrower shall not be required for any amendment, modification or waiver of the provisions of Article X. In addition, DIP Lenders hereby authorize DIP Agent and Borrower to modify this DIP Credit Agreement by unilaterally amending or supplementing the Commitment Annex from time to time in the manner requested by Borrower,  DIP Agent or any DIP Lender in order to reflect any assignments or transfers of the DIP Loans as provided for hereunder; provided, however, that DIP Agent shall promptly deliver a copy of any such modification to Borrower and each DIP Lender.

Borrower will provide copies of all amendments, waivers and consents to the Committee, and U.S. Trustee promptly following the execution thereof; provided, that Borrower shall file all amendments, waivers and consents with the Bankruptcy Court, after which each of the foregoing Persons shall have ten (10) days from the date of filing of all material amendments, waivers and consents to file objections thereto with the Bankruptcy Court.  To the extent any such objection is filed, then, notwithstanding anything to the contrary in this Section 9.05, such amendment, waiver or consent shall only be permitted pursuant to an order of the Bankruptcy Court.

Headings and captions used in the DIP Loan Documents (including the Exhibits, Schedules and Annexes hereto and thereto) are included for convenience of reference only and shall not be given any substantive effect.

THIS DIP CREDIT AGREEMENT, EACH NOTE AND EACH OTHER DIP LOAN DOCUMENT TO THE EXTENT APPLICABLE, AND SUBJECT TO THE BANKRUPTCY CODE, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (EXCEPT WHEN LOCAL OR STATE LAW IS REQUIRED FOR PERFECTION OF LIENS). EACH PARTY HERETO, IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY (A) IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE BANKRUPTCY COURT AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE DIP LOAN DOCUMENTS AND THE OBLIGATIONS BY SERVICE OF PROCESS AS PROVIDED BY NEW YORK LAW,  (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE DIP LOAN DOCUMENTS AND THE OBLIGATIONS BROUGHT IN SUCH COURT, (C) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (D) IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF THE COURT IN ANY SUCH LITIGATION BY THE MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, AT ITS ADDRESS SET FORTH HEREIN, AND (E) IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR IN CONNECTION WITH THE DIP LOAN DOCUMENTS OR THE OBLIGATIONS SHALL BE BROUGHT IN THE BANKRUPTCY COURT. IF (I) THE CHAPTER 11 CASE IS DISMISSED OR (II) THE BANKRUPTCY COURT ABSTAINS FROM HEARING, OR REFUSES TO EXERCISE JURISDICTION OVER, ANY ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS DIP CREDIT AGREEMENT OR ANY OTHER DIP LOAN DOCUMENTS OR IN ANY WAY CONNECTED WITH, OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS DIP CREDIT AGREEMENT OR ANY OTHER DIP LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO, THEN BORROWER HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO DIP AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS DIP CREDIT AGREEMENT OR THE OTHER DIP LOAN

DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY HERETO EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON BORROWER BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO BORROWER AT THE ADDRESS SET FORTH IN THIS DIP CREDIT AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.

BORROWER, DIP AGENT AND EACH DIP LENDER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE DIP LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

This DIP Credit Agreement and the other DIP Loan Documents may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  Delivery of an executed counterpart of the DIP Credit Agreement or the other DIP Loan Documents by e-mail or facsimile shall be effective as delivery of a manually-executed counterpart thereof.  THIS DIP CREDIT AGREEMENT, THE COMMITMENT LETTER AND THE OTHER DIP LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.  IN THE CASE OF ANY CONFLICT OF TERMS CONTAINED IN THIS DIP CREDIT AGREEMENT OR THE COMMITMENT LETTER OR ANY OTHER DIP LOAN DOCUMENT, THE TERMS OF THIS DIP CREDIT AGREEMENT SHALL GOVERN.

DIP Lenders hereby notify Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), DIP Lenders are required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow DIP Lenders to identify Borrower in accordance with the Act.

To the extent DIP Lenders consent, in their sole discretion, to any Investment in the form of an acquisition by Borrower during the term of this DIP Credit Agreement and such Investment

requires debt financing to pay for such Investment,  Borrower acknowledges and agrees that DIP Lenders shall be granted the right to provide such financing upon the same economic terms and conditions as those proposed by any third party. Borrower further acknowledges and agrees that to the extent any DIP Lender agrees to provide any such acquisition financing it shall be entitled to customary fees charged by such DIP Lender in comparable financings.

DIP Agent shall have no duties or responsibilities except those expressly set forth in this DIP Credit Agreement.  Neither DIP Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted by it as such hereunder or in connection herewith, unless caused by its or their gross negligence or willful misconduct. The duties of DIP Agent shall be mechanical and administrative in nature; DIP Agent shall not have by reason of this DIP Credit Agreement a fiduciary relationship in respect of any DIP Lender; and nothing in this DIP Credit Agreement, expressed or implied, is intended to or shall be so construed as to impose upon DIP Agent any obligations in respect of this DIP Credit Agreement except as expressly set forth herein.

Without limiting DIP Agent’s rights and discretion under any provision hereof, DIP Agent shall have the right to request instructions from DIP Lenders. If DIP Agent shall request instructions from DIP Lenders, as the case may be, with respect to any act or action (including the failure to act) in connection with this DIP Credit Agreement,  DIP Agent shall be entitled to refrain from such act or taking such action unless and until DIP Agent shall have received instructions from DIP Lenders and DIP Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no DIP Lender shall have any right of action whatsoever against DIP Agent as a result of DIP Agent acting or refraining from acting hereunder in accordance with the instructions of DIP Lenders.

DIP Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, facsimile or other documentary or telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person.  DIP Agent may consult with legal counsel (including local counsel in any jurisdiction where any Property of Borrower is located and counsel for Borrower with respect to matters concerning Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.

To the extent DIP Agent is not reimbursed and indemnified by Borrower, each DIP Lender will, jointly and severally, reimburse and indemnify DIP Agent, in proportion to its respective Commitment Percentage, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including reasonable counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on,

incurred by or asserted against DIP Agent in any way relating to or arising out of this DIP Credit Agreement (including, without limitation, in connection with Protective Advances), provided that no DIP Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from DIP Agent’s gross negligence or willful misconduct.

With respect to its obligation to lend under this DIP Credit Agreement, the DIP Loans made by it and the Notes issued to it and all of its rights and obligations as a DIP Lender hereunder and under the other DIP Loan Documents, DIP Agent shall have the same rights and powers hereunder as any other DIP Lender or holder of a Note or participation interests and may exercise the same as though it was not performing the duties specified herein; and the term “DIP Lenders” or any similar terms shall, unless the context clearly otherwise indicates, includes DIP Agent in its individual capacity.

DIP Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof shall have been filed with DIP Agent. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the holder of any Note, shall be conclusive and binding on any subsequent holder, transferee or assignee of such Note or of any Note or Notes issued in exchange therefor.

DIP Agent shall not be required to deliver to any DIP Lender originals or copies of any documents, instruments, notices, communications or other information received by DIP Agent from Borrower or any other Person under or in connection with this DIP Credit Agreement or any other DIP Loan Document except (a) as specifically provided in this DIP Credit Agreement or any other DIP Loan Document and (b) as specifically requested from time to time in writing by any DIP Lender with respect to a specific document instrument, notice or other written communication received by and in the possession of DIP Agent at the time of receipt of such request and then only in accordance with such specific request.

DIP Agent shall not be deemed to have knowledge of the occurrence of a Default or Event of Default (other than the non-payment of principal of or interest on the DIP Loans to the extent the same is required to be paid to DIP Agent for the account of DIP Lenders) unless DIP Agent has actual knowledge thereof or has received notice from a DIP Lender or Borrower explicitly specifying an event or condition and then such event or condition is a Default or Event of Default and stating that such notice is a “Notice of Default”. In the event that DIP Agent has such knowledge of or receives such a notice of the occurrence of a Default or Event of Default,  DIP Agent shall give prompt notice thereof to DIP Lenders (and shall give each DIP Lender prompt notice of each such non-payment). DIP Agent shall take such action with respect to such Default or Event of Default or refrain from taking such action, with respect to such Default or Event of Default as DIP Agent shall deem advisable in the best interest of DIP Lenders and shall, without limiting DIP Agent’s rights or discretion under this DIP Credit Agreement, use reasonable efforts under the circumstances to consult with DIP Lenders before taking any material enforcement action; and provided further that DIP Agent shall not be required to take any such action which it determines to be contrary to law.

Remainder of Page Intentionally Left Blank
Signature Pages to Follow

IN WITNESS WHEREOF, the parties hereto have caused this DIP Credit Agreement to be duly executed as of the date first above written.

REAL INDUSTRY, INC., a Delaware corporation

By: /s/ Michael J. Hobey

Name: Michael J. Hobey

Title: Interim CEO, President and CFO

210/RELY CAPITAL, LP, a Texas limited partnership, as DIP Agent and DIP Lender 

By: 210/RELY INVESTMENT, LLC, a Texas limited liability company, its general partner

By:   /s/ Robert H. Alpert

Robert H. Alpert, Principal

GOLDMAN SACHS BDC, INC., as DIP Lender

By: /s/ Brendan McGovern

Name: Brendan McGovern

Title: Authorized Signatory

GOLDMAN SACHS PRIVATE MIDDLE MARKET CREDIT LLC, as DIP Lender

By: /s/ Brendan McGovern

Name: Brendan McGovern

Title: Authorized Signatory

GOLDMAN SACHS MIDDLE MARKET LENDING CORP., as DIP Lender

By: /s/ Brendan McGovern

Name: Brendan McGovern

Title: Authorized Signatory