EXHIBIT 10.1.2
EXECUTION COPY
AMENDMENT NO. 3 dated as of July 17, 2009 (this
“ Amendment ”), to the Credit Agreement dated as
of November 15, 2007, among Barzel Industries Inc. (formerly known
as Novamerican Steel Inc. and Symmetry Holdings Inc.), a Delaware
corporation (“ Parent ”), Barzel Finco Inc.
(formerly known as Novamerican Steel Finco Inc.), a Delaware
corporation (“ US Borrower ”), Barzel Industries
Canada Inc. (formerly known as Novamerican Steel Canada Inc. and
Novamerican Steel Inc.), a Canadian corporation (“
Canadian Borrower ”), the Lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, JPMorgan Chase
Bank, N.A., Toronto Branch, as Canadian Agent, and CIT Business
Credit Canada Inc. and The CIT Group/Business Credit, Inc., as
Syndication Agents (the “ Credit Agreement
”).
WHEREAS, the parties wish to amend the Credit
Agreement as provided herein;
NOW, THEREFORE, in consideration of the above
premises and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION
1.
Defined Terms . Each capitalized term used and not defined
herein, including in the recitals hereto, shall have the meaning
assigned to it in the Credit Agreement.
SECTION
2.
Amendments of the Loan Documents . Effective as of the
Amendment Effective Date (as defined below):
(a) Section
1.01 of the Credit Agreement shall be amended by amending the
definition of “Availability Block” to replace the
reference therein to “US$7,500,000” with a reference to
“US$1,500,000”.
(b) Section
9.20(a)(i) of the Credit Agreement is amended by replacing the
phrase “concentration accounts maintained with the
Administrative Agent” with the phrase “concentration
accounts maintained in the name of the Administrative
Agent”.
(c) The
definition of “Obligations” contained in the Guarantee
and Collateral Agreement shall be amended by inserting at the end
thereof the following new clause (iii): “or (iii) owed to
Bank of America, N.A., or to any of its Affiliates in respect of
(A) any Letter of Credit set forth on Schedule I to Amendment No. 3
to the Credit Agreement or any LC Disbursement in respect of any
such Letter of Credit or (B) in respect of any Cash Management
Services Obligations arising in respect of any Cash Management
Services described on Schedule II to Amendment No. 3 to the Credit
Agreement or other Cash Management Services the inclusion of which
in the Obligations is approved in
writing by the
Administrative Agent after the Amendment Effective Date for
Amendment No. 3 to this Agreement”.
(d) Each
“Application of Proceeds” provision contained in any
Security Document shall be amended (i) to insert before the FIRST
application of proceeds contained therein a new FIRST application:
“FIRST, to payment in full of all Obligations owed to Bank of
America, N.A., or to any of its Affiliates in respect of any Letter
of Credit or LC Disbursement or in respect of any Cash Management
Services Obligations” and (ii) to renumber the references
therein to “FIRST” as “SECOND”,
“SECOND” as “THIRD”, “THIRD” as
“FOURTH”, “FOURTH” as “FIFTH”
and “FIFTH” as “SIXTH”.
SECTION
3.
Agreements with Bank of America . Effective as of the
Amendment Effective Date:
(a) Bank
of America, N.A. (i) will not, and will not permit its Affiliates
to, issue or at any time have outstanding any Letter of Credit
other than those set forth on Schedule I hereto (and extensions and
renewals thereof that do not result in any increase in the LC
Exposure) (the amount of all obligations of each Loan Party owed to
Bank of America, N.A. or to any of its Affiliates in respect of any
such Letter of Credit or any LC Disbursement in respect of any such
Letter of Credit, the “ Bank of America, N.A. LC
Exposure ”), and if any letter of credit is issued in
breach of this Section 3(a)(i), such letter of credit shall not
constitute a Letter of Credit under the Credit Agreement and no
obligation in respect thereof shall be secured by the Collateral;
(ii) will, and will cause its Affiliates to, provide the Cash
Management Services described on Schedule II hereto on
substantially the terms and conditions in effect as of the date
hereof, in each case except to the extent approved in writing by
the Administrative Agent (the amount of all obligations of each
Loan Party owed to Bank of America, N.A. or to any of its
Affiliates in respect of such Cash Management Services, together
with the Bank of America, N.A. LC Exposure, the “ Bank of
America, N.A. Exposure ”); provided, however, that Bank
of America, N.A. or its Affiliates may terminate any such Cash
Management Services at its commercially reasonable discretion upon
delivery to the Administrative Agent of at least 30 days prior
written notice, with such notice being given as set forth below;
and (iii) will, and will cause its Affiliates to, at all times
maintain the accounts specified in Schedule III and maintain and
comply with the deposit account control agreements entered into in
respect such accounts; provided , however , that Bank
of America, N.A. or its Affiliates may at any time after October 1,
2009 terminate its obligations under this clause (iii) at its
commercially reasonable discretion upon delivery to the
Administrative Agent of prior written notice to such effect.
Notices shall be given to:
JPMorgan Chase
Bank, N.A., Loan and Agency Services Group, 1111 Fannin, 10th
Floor, Houston, Texas 77002, Attention of Monica Espitia (Fax No.
(713) 427-6307), with a copy to JPMorgan Chase Bank, N.A., 270 Park
Avenue, New York, New York 10017, Attention of Robert Kaulius (Fax
No. (646) 534-2288).
(b) The
changes to the Loan Documents effected pursuant to Sections 2(c)
and (d) of this Amendment may not be amended or modified without
the written consent of Bank of America, N.A., provided that
30 days after the Administrative Agent delivers to Bank of America,
N.A. or its Affiliates notice stating that Bank of America, N.A. or
its Affiliates is not in compliance with the agreements set forth
in clause (a)(iii) of this Section 3, clause (iii) of the
definition of “Obligations” contained in the Guarantee
and Collateral Agreement shal
