EXHIBIT 10.2.1
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
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