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DEFERRAL AGREEMENT

Forbearance Agreement

DEFERRAL AGREEMENT | Document Parties: BARZEL INDUSTRIES INC. You are currently viewing:
This Forbearance Agreement involves

BARZEL INDUSTRIES INC.

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Title: DEFERRAL AGREEMENT
Date: 7/20/2009
Industry: Misc. Financial Services     Sector: Financial

DEFERRAL AGREEMENT, Parties: barzel industries inc.
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EXHIBIT 10.2.1

 

EXECUTION VERSION

 

DEFERRAL AGREEMENT

 

This DEFERRAL AGREEMENT (this “ Agreement ”), dated as of May 14, 2009, is entered into by and among Barzel Finco Inc. (f/k/a Novamerican Steel Finco Inc.) (the “ Issuer ”), Barzel Industries Inc. (f/k/a Symmetry Holdings Inc.) (the “ Parent ”; and together with the Issuer and the other subsidiaries of the Parent, the “ Company ”), JPMorgan Chase Bank, N.A. (“ JPM ”) and CIBC World Markets Inc. (“ CIBC ”; and together with JPM, the “ Noteholders ”).

 

W I T N E S S E T H:

 

WHEREAS , the Issuer, the Parent and The Bank of New York Mellon, as trustee (the “ Trustee ”), have entered into that certain Indenture, dated as of November 15, 2007 (as amended, modified or supplemented prior to the date hereof, and together with all exhibits thereto, the “ Indenture ”), in respect of the Issuer’s $315,000,000 principal amount of 11.5% Senior Secured Notes due 2015 (the “ Notes ”);

 

WHEREAS , the Noteholders together hold 100% of the aggregate principal amount of the Notes outstanding and have retained Stroock & Stroock & Lavan LLP (“ Stroock ”) as restructuring counsel and Loughlin Meghji + Company as financial advisor (“ LM+Co ”; and together with Stroock, the “ Advisors ”), for the purpose of entering into discussions with the legal and financial advisors to the Issuer;

 

WHEREAS , an interest payment under the Securities (as defined in the Indenture) is due on May 15, 2009 (the “ Interest Payment ”);

 

WHEREAS , the Issuer’s failure to make such Interest Payment pursuant to Section 4.01 of the Indenture on or before May 15, 2009 will (subject to the expiration of the applicable grace period under Section 6.01 of the Indenture) constitute an “Event of Default” under Section 6.01 of the Indenture and permit holders of at least 25% in principal amount of the outstanding Securities to accelerate the maturity of the Notes, declare all amounts under the Notes and the Indenture immediately due and payable and exercise all other rights and remedies under the Indenture;

 

WHEREAS , the Issuer has requested that the Noteholders consent to defer payment of the Interest Payment until the Deferral Termination Date (as defined below) and to direct the Trustee in writing to not exercise any rights and remedies on the Noteholders’ behalf regarding the Interest Payment until such Deferral Termination Date;

 

WHEREAS , the Noteholders are willing to grant the Issuer’s request for such consent to a deferral, and to give to the Trustee such written directions, as described in the preceding paragraph on the terms and subject to the conditions contained herein; and

 

WHEREAS , the Company has advised the Noteholders that it intends to enter into a transaction (the “ Transaction ”) pursuant to which the Company will seek to effect either (i) a recapitalization or restructuring of a substantial portion of the equity and/or debt securities and/or other indebtedness of the Company, (ii) a disposition of all or a majority of the outstanding equity securities of the Company and/or all or a majority of the assets or operations of the

 

 

 

 


 

 

Company, or (iii) a refinancing of the indebtedness of the Company and/or the placement, raising or issuance of equity, equity-linked or debt securities in connection with the Company.

 

NOW, THEREFORE , in consideration of the mutual covenants contained herein, and subject to the terms and conditions set forth below, the parties hereto hereby agree as follows:

 

1.            Defined Terms .  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Indenture.  Each of the following capitalized terms shall have the meaning set forth below:

 

Deferral Period ” means the period beginning on the Effective Date and continuing through the Deferral Termination Date.

 

Deferral Termination Date ” means the earliest date of occurrence of a Deferral Termination Event.

 

Deferral Termination Event ” means any of the following events:

 

(a) the acceleration of the maturity of any obligations under the Credit Agreement followed by written notice from the Noteholders sent to the Company electing to treat such acceleration as a “Deferral Termination Event”;

 

(b) the occurrence of a Default or an Event of Default under the Indenture other than the failure to make the Interest Payment;

 

(c) the breach of, or failure of the Issuer to comply with Section 5 of this Agreement, without the need for prior written notice, unless cured within one (1) day in the case of Section 5(a) ; or

 

(d) 5:00 pm EDT on August 14, 2009.

 

Financial Forecast ” means the financial projections prepared by the Company and agreed upon by the Advisors in good faith showing detailed income statement, balance sheet and cash flow statement projections both (a) on a monthly basis through the end of fiscal year 2009, and (b) on an annual basis through the end of fiscal year 2014.

 

Ordinary Course Operating and Statutory Liens ” means any of the Liens described in clauses (1)-(5), (8) or (11)-(17) of the definition of Permitted Liens.

 

2.            Deferral and Agreement .  Effective as of the Effective Date (as herein defined), notwithstanding anything to the contrary set forth in the Indenture, the Noteholders hereby consent to waive compliance by the Issuer with any provision of the Indenture and the Securities regarding the Interest Payment during the Deferral Period.  The Issuer agrees to make the Interest Payment on such Deferral Termination Date, along with interest accruing on the Interest Payment at the interest rate applicable to the principal amount under the Indenture and the Securities plus 2.00% per annum, to the extent lawful, with such interest to be payable on the Deferral Termination Date.  Interest shall accrue on the outstanding principal amount under the Indenture and the Securities during the Deferral Period at the rate provided in the Indenture and

 

 

 

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the Securities plus 2.00% per annum, to the extent lawful, with such interest to be payable on November 15, 2009.  The Noteholders hereby direct the Trustee not to exercise any rights and remedies on the Noteholders’ behalf regarding the Interest Payment until such Deferral Termination Date or as directed otherwise by the Noteholders.  For the avoidance of doubt, until the Deferral Termination Date, the non-payment of the Interest Payment due on May 15, 2009 in accordance with this Agreement shall not constitute a default under the Indenture.

 

3.            Limit of Deferral and Consent .  Other than departures therefrom consented to by the Noteholders hereunder, all of the provisions of the Indenture shall continue to be, and shall remain, in full force and effect in accordance with their terms, and all rights and remedies of the Noteholders and the Trustee arising under the Indenture are here


 
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