EXHIBIT 10.2.2
Execution
Version
FIRST AMENDMENT TO DEFERRAL
AGREEMENT
This FIRST AMENDMENT TO DEFERRAL
AGREEMENT (this “ Amendment ”), dated as of
July 17, 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 ”) amends certain provisions of that
certain Deferral Agreement, dated as of May 14, 2009 (as amended,
restated, supplemented or otherwise modified from time to time, the
“ Deferral Agreement ”), among the Company, JPM
and CIBC. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Deferral
Agreement.
W I T N E S S E T
H:
WHEREAS , the Issuer and the Parent have requested that
the undersigned Noteholders agree to amend certain of the terms and
provisions of the Deferral Agreement, as specifically set forth in
this Amendment; and
WHEREAS , the undersigned Noteholders agree to amend the
Deferral Agreement on the terms, subject to the conditions and in
reliance on the representations set forth herein.
NOW THEREFORE , in consideration of the mutual agreements
contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1.
Amendment to the Deferral Agreement .
(a) Section
1 of the Deferral Agreement is hereby amended by deleting clause
(d) of the definition of “Deferral Termination Event”
in its entirety and replacing it with the following
“(d) 5:00pm EDT on October 13,
2009.”
2.
Conditions Precedent . This Amendment shall become effective
as of the date first written above (the “ Effective
Date ”) upon:
(a) each
of the parties hereto having executed and delivered a counterpart
to this Amendment;
(b) the
Company having paid all outstanding fees and expenses of the
Advisors;
(c) the
Issuer having delivered to the Advisors a certificate signed by an
officer of the Issuer certifying that, to the Company’s
knowledge, no additional Liens exist as of the Effective Date
(other than those Liens existing on February 27, 2009) to the
extent such Liens apply to assets or property of the Company with a
fair market value equal to or greater than $500,000, other than
Ordinary Course Operating and Statutory Liens; and
(d) delivery
of such other information and documents as the Noteholders or their
counsel may reasonably request.
3.
Continued Validity of Deferral Agreement and the Indenture .
Except for the amendment to the Deferral Agreement set forth in
Section 1 hereof, this Amendment shall not, by implication
or otherwise, limit, impair, constitute a waiver of or otherwise
affect any rights or remedies of any Noteholder under the Deferral
Agreement or the Indenture, nor alter, modify, amend or in any way
affect any of the rights, remedies, obligations or any covenants of
the Issuer or the Parent arising under the Deferral Agreement or
the Indenture, all of which are ratified and confirmed in all
respects and shall continue in full force and effect. Except as
ex