Exhibit 10.6


 


EXECUTION COPY


 




 





COLLATERAL AGREEMENT


 


dated as of


 


November 15, 2007


 


among


 


SYMMETRY HOLDINGS INC.


 


NOVAMERICAN STEEL FINCO INC.


 


THE OTHER SUBSIDIARIES OF SYMMETRY HOLDINGS
INC.

IDENTIFIED HEREIN


 


and


 


THE BANK OF NEW YORK,


as Collateral Agent


 


THIS COLLATERAL AGREEMENT IS SUBJECT TO THE PROVISIONS
OF THE LIEN SUBORDINATION AND INTERCREDITOR AGREEMENT OF EVEN DATE HEREWITH
AMONG SYMMETRY HOLDINGS INC., NOVAMERICAN STEEL FINCO INC., NOVAMERICAN STEEL
INC., OTHER SUBSIDIARIES OF SYMMETRY HOLDINGS INC. IDENTIFIED THEREIN, JPMORGAN
CHASE BANK, N.A., AS THE ADMINISTRATIVE AGENT UNDER THE CREDIT AGREEMENT, AND
THE BANK OF NEW YORK, AS COLLATERAL AGENT, AS MORE FULLY SET FORTH IN SECTION
6.15 HEREOF.




 





[CS&M Ref. No. 6749-694]


 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE I

  	
   

  
	
   

  	
   

  	
   

  
	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Indenture

  	
  1

  
	
  SECTION 1.02.

  	
  Other Defined Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  	
   

  
	
  Pledge of Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Pledge

  	
  6

  
	
  SECTION 2.02.

  	
  Delivery of the Pledged Collateral

  	
  7

  
	
  SECTION 2.03.

  	
  Representations, Warranties and Covenants

  	
  8

  
	
  SECTION 2.04.

  	
  Certification of Limited Liability Company and Limited Partnership
  Interests

  	
  9

  
	
  SECTION 2.05.

  	
  Registration in Nominee Name; Denominations

  	
  9

  
	
  SECTION 2.06.

  	
  Voting Rights; Dividends and Interest

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  	
   

  
	
  Security Interests in Personal Property

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Security Interest

  	
  12

  
	
  SECTION 3.02.

  	
  Representations and Warranties

  	
  13

  
	
  SECTION 3.03.

  	
  Covenants

  	
  14

  
	
  SECTION 3.04.

  	
  Other Actions

  	
  17

  
	
  SECTION 3.05.

  	
  Covenants Regarding Patent, Trademark and Copyright Collateral

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
  Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Remedies Upon Default

  	
  21

  
	
  SECTION 4.02.

  	
  Application of Proceeds

  	
  23

  
	
  SECTION 4.03.

  	
  Grant of License to Use Intellectual Property

  	
  23

  
	
  SECTION 4.04.

  	
  Securities Act

  	
  24

  
	
  SECTION 4.05.

  	
  Registration

  	
  24

  
	
  SECTION 4.06.

  	
  Concerning Pledged Securities

  	
  25

  



 


i

















 


	
  ARTICLE V

  	
   

  
	
   

  	
   

  	
   

  
	
  Indemnity, Subrogation and Subordination

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Indemnity and Subrogation

  	
  25

  
	
  SECTION 5.02.

  	
  Contribution and Subrogation

  	
  26

  
	
  SECTION 5.03.

  	
  Subordination

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Notices

  	
  26

  
	
  SECTION 6.02.

  	
  Waivers; Amendment

  	
  27

  
	
  SECTION 6.03.

  	
  Collateral Agent’s Fees and Expenses; Indemnification

  	
  27

  
	
  SECTION 6.04.

  	
  Successors and Assigns

  	
  28

  
	
  SECTION 6.05.

  	
  Survival of Agreement

  	
  28

  
	
  SECTION 6.06.

  	
  Counterparts; Effectiveness; Several Agreement

  	
  28

  
	
  SECTION 6.07.

  	
  Severability

  	
  29

  
	
  SECTION 6.08.

  	
  Governing Law; Jurisdiction; Consent to Service of Process

  	
  29

  
	
  SECTION 6.09.

  	
  WAIVER OF JURY TRIAL

  	
  30

  
	
  SECTION 6.10.

  	
  Headings

  	
  30

  
	
  SECTION 6.11.

  	
  Security Interest Absolute

  	
  30

  
	
  SECTION 6.12.

  	
  Termination or Release

  	
  30

  
	
  SECTION 6.13.

  	
  Additional Grantors

  	
  31

  
	
  SECTION 6.14.

  	
  Collateral Agent Appointed Attorney-in-Fact

  	
  31

  
	
  SECTION 6.15.

  	
  Intercreditor Agreement

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  	
   

  
	
  Concerning the Collateral Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Confirmation of Appointment

  	
  32

  
	
  SECTION 7.02.

  	
  Duties or Obligations

  	
  32

  
	
  SECTION 7.03.

  	
  Reliance; Sub-Agents

  	
  33

  
	
  SECTION 7.04.

  	
  Resignation of the Collateral Agent

  	
  33

  



 


ii

















 


	
  Schedules

  	
   

  
	
   

  	
   

  
	
  Schedule I

  	
  Subsidiary Parties

  
	
  Schedule II

  	
  Pledged Capital Stock; Pledged Debt Securities

  
	
  Schedule III

  	
  Intellectual Property

  
	
  Schedule IV

  	
  Commercial Tort Claims

  
	
   

  	
   

  
	
  Exhibits

  	
   

  
	
   

  	
   

  
	
  Exhibit I

  	
  Form of Supplement

  
	
  Exhibit II

  	
  Form of Patent and Trademark Security Agreement

  
	
  Exhibit III

  	
  Form of Copyright Security Agreement

  
	
  Exhibit IV

  	
  Form of Perfection Certificate

  



 


iii

















 


COLLATERAL AGREEMENT dated as of November 15,
2007 (as amended, supplemented or otherwise modified from time to time, this “Agreement”),
among SYMMETRY HOLDINGS INC., a Delaware corporation (“Symmetry”),
NOVAMERICAN STEEL FINCO INC., a Delaware corporation (the “Company”),
the other Subsidiaries of Symmetry identified herein and THE BANK OF NEW YORK,
as collateral agent for the Secured Parties (in such capacity, the “Collateral
Agent”).


 


Reference is made to (a) the Indenture dated as of November 15, 2007
(as amended, supplemented or otherwise modified from time to time, the “Indenture”),
among Symmetry, the Company, the Subsidiary Guarantors identified therein and
The Bank of New York, as trustee (in such capacity, the “Trustee”), and
(b) the Purchase Agreement dated as of November 15, 2007 (as supplemented by
the Joinder Agreement dated as of November 15, 2007, the “Purchase Agreement”),
among Symmetry, the Company, the Subsidiary Guarantors identified therein and
J.P. Morgan Securities Inc. and CIBC World Markets Corp., as initial purchasers
(the “Initial Purchasers”). The Trustee has agreed to enter the
Indenture and the Initial Purchasers have agreed to purchase the Initial
Securities, in each case on the terms and subject to the conditions set forth
in the Indenture and the Purchase Agreement, respectively. The obligations of
the Initial Purchasers to purchase the Initial Securities are conditioned on,
among other things, the execution and delivery by Symmetry, the Company and the
Subsidiary Parties of this Agreement. Symmetry and the Subsidiary Parties are
affiliates of the Company, will derive substantial benefits from the issuance
of the Securities by the Company pursuant to the Indenture and are willing to
execute and deliver this Agreement in order to induce the Initial Purchasers to
purchase the Securities. Accordingly, the parties hereto agree as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01. Indenture.
(a)  Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings specified in the
Indenture.


 


(b)  The rules of construction specified in
Section 1.04 of the Indenture also apply to this Agreement, mutatis
mutandis.


 


SECTION 1.02. Other
Defined Terms. (a)  All terms defined
in the New York UCC (as defined below) and not defined in this Agreement have
the meanings specified therein. The term “instrument” shall have the meaning
specified in Article 9 of the New York UCC.


 


(b)  As used in this Agreement, the following
terms have the meanings specified below:


 





















 


“ABL Collateral” means any and all of the
following:  (a) all Accounts Receivable and related Records,
(b) all Chattel Paper, (c) all Deposit Accounts (excluding the Notes
Collateral Account), (d) all cash, checks and other negotiable
instruments, funds and other evidences of payment (excluding any cash or other
assets held in the Notes Collateral Account in accordance with the Indenture),
(e) all Inventory, (f) to the extent evidencing, governing, securing
or otherwise related to the items referred to in the preceding
clauses (a), (b), (c), (d) and (e), all Documents, General Intangibles,
Instruments, Investment Property and Letter of Credit Rights, (g) all
books and records related to the foregoing, (h) all collateral security
and guarantees given by any Person with respect to any of the foregoing and (i) all
Proceeds, including insurance Proceeds, of any and all of the foregoing.


 


“Account Debtor” means any Person who is or who may become
obligated to any Grantor under, with respect to or on account of an Account.


 


“Accounts Receivable” means all Accounts and other rights to
payment, in each case for the sale of Inventory or the performance of services,
existing on the date of this Agreement or hereafter arising, whether or not
earned by performance.


 


“Agreement” has the meaning assigned to such term in the
preamble to this Agreement.


 


“Article 9 Collateral” means any and all of the
following:  (a) all Accounts and
related Records, (b) all Chattel Paper, (c) all Deposit Accounts,
(d) all cash, checks and other negotiable instruments, funds and other evidences
of payment, (e) all Inventory, (f) all Equipment (including all
Fixtures), (f) all Documents, (g) all General Intangibles (including
all Intellectual Property), (h) all Instruments, (i) all Investment
Property, (j) all Letter of Credit Rights, (k) all Commercial Tort
Claims described on Schedule IV, (l) all books and records related to
the foregoing and (m) all Proceeds (including insurance Proceeds) and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing. The
Article 9 Collateral includes, but is not limited to, the ABL Collateral.


 


“Collateral” means all Article 9 Collateral in which a
security interest has been granted hereunder and all Pledged Collateral.


 


“Collateral Access Agreement” means any landlord waiver or other
agreement, in customary form and substance, between the Collateral Agent and
any third party (including any bailee, consignee, customs broker or other
similar Person) in possession of any Collateral or any landlord of any Grantor
for any real property where any Collateral is located, as such landlord waiver
or other agreement may be amended, restated, or otherwise modified from time to
time.


 


“Collateral Agent” has the meaning assigned to such term in the
preamble to this Agreement.


 


“Company” has the meaning assigned to such term in the
preliminary statement of this Agreement.


 


2

















 


“Copyright License” means any written agreement, now or
hereafter in effect, granting any right to any third party under any copyright
now or hereafter owned by any Grantor or that such Grantor otherwise has the
right to license, or granting any right to any Grantor under any copyright now
or hereafter owned by any third party, and all rights of such Grantor under any
such agreement.


 


“Copyrights” means all of the following now owned or hereafter
acquired by any Grantor:  (a) all
copyright rights in any work subject to the copyright laws of the United States
or any other country, whether as author, assignee, transferee or otherwise, and
(b) all registrations and applications for registration of any such
copyright in the United States or any other country, including registrations,
recordings, supplemental registrations and pending applications for
registration in the United States Copyright Office, including those listed on
Schedule III.


 


“Deposit Account Control Agreement” means an agreement in
customary form and substance, among any Grantor, a bank or other financial
institution holding such Grantor’s funds, and the Collateral Agent with respect
to collection and control of all deposits and balances held in a Deposit
Account maintained by such Grantor with such bank or other financial
institution; provided, however, that in no event shall the
Collateral Agent be required to indemnify any such Grantor, bank or other
financial institution pursuant thereto.


 


“Excluded Capital Stock” has the meaning assigned to such term
in Section 2.01(a).


 


“Federal Securities Laws” has the meaning assigned to such term
in Section 4.04.


 


“General Intangibles” means all choses in action and causes of
action and all other intangible personal property of every kind and nature
(other than Accounts) now owned or hereafter acquired by any Grantor, including
corporate or other business records, indemnification claims, contract rights
(including rights under leases, whether entered into as lessor or lessee,
Hedging Agreements and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Grantor to secure payment by an Account Debtor of any of the Accounts.


 


“Grantors” means Symmetry, the Company and the Subsidiary
Parties.


 


“Guarantors” means Symmetry and the Subsidiary Parties.


 


“Holders” has the meaning assigned to such term in the
Indenture.


 


“Indemnitees” has the meaning assigned to such term in Section
6.03.


 


“Indenture” has the meaning assigned to such term in the
preliminary statement of this Agreement.


 


3

















 


“Intellectual Property” means all intellectual and similar
property of every kind and nature now owned or hereafter acquired by any
Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions
to, and books and records describing or used in connection with, any of the
foregoing.


 


“Initial Purchasers” has the meaning assigned to such term in
the preliminary statement of this Agreement.


 


“Intercreditor Agreement” means the Lien Subordination and
Intercreditor Agreement dated as of the date hereof among Symmetry, the
Company, Novamerican Steel Inc., a Canadian corporation, the other Subsidiaries
of Symmetry described therein, the Credit Agent and the Collateral Agent, as
amended, supplemented or otherwise modified from time to time.


 


“IP Security Agreements” means (a) a Patent and Trademark
Security Agreement, in the form of Exhibit II hereto, and (b) a Copyright
Security Agreement in the form of Exhibit III hereto.


 


“License” means any Patent License, Trademark License, Copyright
License or other license or sublicense agreement relating to intellectual
property to which any Grantor is a party, including those listed on Schedule III.


 


“New York UCC” means the Uniform Commercial Code as from time to
time in effect in the State of New York.


 


“Non-ABL Collateral” means all Collateral that is not ABL
Collateral.


 


“Notes Documents” means the Indenture (including the Guarantees
set forth therein), the Securities, the Security Documents and the other
documents and instruments executed and delivered pursuant to the foregoing, as
such documents and instruments may be amended, restated, supplemented or
otherwise modified from time to time.


 


“Notes Obligations” means (a) the Indebtedness evidenced by
the Securities and all Obligations in respect thereof, including principal,
premium (if any), interest (including additional interest, if any, and interest
accruing on or after the filing of any petition in bankruptcy of for
reorganization relating to the Company or any Guarantor whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement obligations, Guarantees and all other amounts payable
thereunder or in respect thereof, and (b) any other obligations of the Company
or any Guarantor under the Indenture or any other Notes Document.


 


“Patent License” means any written agreement, now or hereafter
in effect, granting to any third party any right to make, use or sell any
invention on which a patent,


 


4

















 


now or hereafter owned by any Grantor or that any Grantor otherwise has
the right to license, is in existence, or granting to any Grantor any right to
make, use or sell any invention on which a patent, now or hereafter owned by
any third party, is in existence, and all rights of any Grantor under any such
agreement.


 


“Patents” means all of the following now owned or hereafter
acquired by any Grantor:  (a) all
letters patent of the United States or the equivalent thereof in any other
country, all registrations and recordings thereof, and all applications for
letters patent of the United States or the equivalent thereof in any other
country, including registrations, recordings and pending applications in the
United States Patent and Trademark Office or any similar offices in any other
country, including those listed on Schedule III, and (b) all
reissues, continuations, divisions, continuations-in-part, renewals or
extensions thereof, and the inventions disclosed or claimed therein, including
the right to make, use and/or sell the inventions disclosed or claimed therein.


 


“Perfection Certificate” means a certificate in the form of
Exhibit IV.


 


“Pledged Collateral” has the meaning assigned to such term in
Section 2.01.


 


“Pledged Debt Securities” has the meaning assigned to such term
in Section 2.01.


 


“Pledged Capital Stock” has the meaning assigned to such term in
Section 2.01.


 


“Pledged Securities” means any promissory notes, stock
certificates or other securities certificates or instruments now or hereafter
included in the Pledged Collateral, including all certificates, instruments or
other documents representing or evidencing any Pledged Collateral.


 


“Proceeds” has the meaning assigned to such term in
Section 9-102 of the New York UCC.


 


“Purchase Agreement” has the meaning assigned to such term in
the preliminary statement of this Agreement.


 


“Secured Parties” means, collectively, (a) the Holders,
(b) the Trustee, (c) the Collateral Agent, (d) the Canadian
Collateral Agent, (e) each other Person that holds, or is an obligee in respect
of, any Notes Obligations, and (f) the successors and assigns of each of
the foregoing.


 


“Security Interest” means the security interests created under
paragraph (a) of Section 3.01.


 


“Special Purpose Holdco” means a Subsidiary that (a) is not
engaged in any business or activity other than the ownership of Capital Stock
in any Subsidiary that is not a wholly-owned Subsidiary or any Person that is
not a Subsidiary, and activities 


 


5

















 


incidental thereto, (b) does not own any assets other than the Capital
Stock referred to in clause (a) above and any contract rights under joint
venture or other similar agreements relating thereto and (c) owes no
Indebtedness and has no other liabilities (other than liabilities imposed by
law, including tax liabilities, and other liabilities incidental to its
existence and permitted business and activities).


 


“Subsidiary Parties” means (a) the Subsidiaries of Symmetry
identified on Schedule I and (b) each other Subsidiary of Symmetry
that becomes a party to this Agreement as a Subsidiary Party after the Issue
Date.


 


“Symmetry” has the meaning assigned to such term in the
preliminary statement to this Agreement.


 


“Trademark License” means any written agreement, now or
hereafter in effect, granting to any third party any right to use any trademark
now or hereafter owned by any Grantor or that any Grantor otherwise has the
right to license, or granting to any Grantor any right to use any trademark now
or hereafter owned by any third party, and all rights of any Grantor under any
such agreement.


 


“Trademarks” means all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names,
trade styles, trade dress, logos, other source or business identifiers, designs
and general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office
or any similar offices in any State of the United States or any other country
or any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule III, (b) all goodwill associated
therewith or symbolized thereby and (c) all other assets, rights and
interests that uniquely reflect or embody such goodwill.


 


“Trustee” means the Person serving as the Trustee under the
Indenture.


 


(c)  As used in this Agreement, the terms “Guarantor”
and “Grantor” have the meanings assigned thereto in paragraph (b) of this
Section, and shall not be interpreted to refer to any Person solely in its
capacity as a guarantor of the Notes Obligations or as a grantor of the
security interests hereunder.


 


ARTICLE II


 


Pledge of
Securities


 


SECTION 2.01. Pledge.
As security for the payment or performance, as the case may be, in full of the
Notes Obligations, each Grantor hereby assigns and pledges to the Collateral
Agent, its successors and assigns, for the benefit of the Secured Parties, and
hereby grants to the Collateral Agent, its successors and assigns, for the
benefit of the Secured Parties, a security interest in, all of such Grantor’s
right, title and interest in, to and under the following assets:


 


6

















 


(a) the shares Capital Stock owned by such Grantor on the date hereof
(including those listed opposite the name of such Grantor on Schedule II),
any other Capital Stock obtained by such Grantor in the future and the
certificates representing all such Capital Stock (the “Pledged Capital Stock”);
provided that (i) the Pledged Capital Stock issued by any CFC shall
not include more than 66% of the issued and outstanding Voting Stock of such
CFC and (ii) the Pledged Capital Stock shall not include Capital Stock in
any Person that is not a Wholly Owned Subsidiary (or in any Special Purpose
Holdco with respect to such Person) where, pursuant to the organizational
documents of such Person and any related joint venture or similar agreement,
such assignment, pledge or grant of a security interest is prohibited without
the consent of such Person (other than Symmetry or any of its Subsidiaries)
(the Capital Stock so excluded is collectively referred to herein as the “Excluded
Capital Stock”);


 


(b) the debt securities owned by such Grantor on the date hereof
(including the Intercompany Notes and the other debt securities listed opposite
the name of such Grantor on Schedule II), any debt securities obtained by
such Grantor in the future and the promissory notes and any other instruments
evidencing all such debt securities (the “Pledged Debt Securities”);


 


(c) all other property that may be delivered to and held by the
Collateral Agent pursuant to the terms of this Section;


 


(d) subject to Section 2.06, all payments of principal or
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of, in exchange for or
upon the conversion of, and all other Proceeds received in respect of, the
securities referred to in clauses (a) and (b) above;


 


(e) subject to Section 2.06, all rights and privileges of such
Grantor with respect to the securities and other property referred to in
clauses (a), (b), (c) and (d) above; and


 


(f) all Proceeds of any of the foregoing


 


(the items referred to in the
foregoing clauses (a) through (f) above being collectively referred to as
the “Pledged Collateral”).


 


TO HAVE AND TO HOLD the Pledged Collateral, together with all right,
title, interest, powers, privileges and preferences pertaining or incidental
thereto, unto the Collateral Agent, its successors and assigns, for the benefit
of the Secured Parties, forever; subject, however, to the terms,
covenants and conditions hereinafter set forth.


 


SECTION 2.02. Delivery
of the Pledged Collateral. (a)  Each
Grantor agrees promptly to deliver or cause to be delivered to the Collateral
Agent any and all Pledged Securities at any time owned by such Grantor.


 


7

















 


(b)  Each Grantor will cause any Indebtedness for
borrowed money owed to such Grantor by any Person (other than any Investment
Property on deposit with a securities intermediary) to be evidenced by a duly
executed promissory note that is pledged and delivered to the Collateral Agent
pursuant to the terms hereof.


 


(c)  Upon delivery to the Collateral Agent,
(i) any Pledged Securities shall be accompanied by stock powers duly
executed in blank or other instruments of transfer satisfactory to the Collateral
Agent and by such other instruments and documents as the Collateral Agent may
reasonably request and (ii) all other property comprising part of the
Pledged Collateral shall be accompanied by proper instruments of assignment
duly executed by the applicable Grantor and such other instruments or documents
as the Collateral Agent may reasonably request. Each delivery of Pledged
Securities after the date of this Agreement shall be accompanied by a schedule
describing the Pledged Securities so delivered, which schedule shall be
attached hereto and shall become part of Schedule II hereto; provided
that failure to attach any such schedule shall not affect the validity of the
pledge of such Pledged Securities.


 


(d)  The assignment, pledges and security interests
granted in Section 2.01 are granted as security only and shall not subject
the Collateral Agent or any other Secured Party to, or in any way alter or
modify, any obligation or liability of any Grantor with respect to or arising
out of the Pledged Collateral.


 


SECTION 2.03. Representations,
Warranties and Covenants. The Grantors jointly and severally represent,
warrant and covenant to and with the Collateral Agent, for the benefit of the
Secured Parties, that:


 


(a) Schedule II sets forth, as of the date hereof, a true and complete
list, with respect to each Grantor, of (i) all the Capital Stock owned by
such Grantor, setting forth the percentage of the issued and outstanding units
of each class of the Capital Stock of the issuer thereof so owned by such
Grantor and the number of each certificate representing the same, and
(ii) all debt securities owned by such Grantor, setting forth all
promissory notes and other instruments evidencing the same;


 


(b) the Pledged Capital Stock and Pledged Debt Securities have been
duly and validly authorized and issued by the issuers thereof and (i) in
the case of Pledged Capital Stock, are fully paid and nonassessable and
(ii) in the case of Pledged Debt Securities, are legal, valid and binding
obligations of the issuers thereof, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law;


 


(c) except for the security interests granted hereunder, each Grantor
(i) is and, subject to any transfers made in compliance with the
Indenture, will continue to be the direct owner, beneficially and of record, of
the Pledged Securities indicated on Schedule II as owned by such Grantor,
(ii) holds the same free and clear of all Liens, other than Liens created
by this Agreement, other Permitted 


 


8

















 


Liens and
transfers made in compliance with the Indenture, and (iii) will defend its
title or interest thereto or therein against any and all Liens (other than the
Lien created by this Agreement and other Permitted Liens), however, arising, of
all Persons whomsoever;


 


(d) except for restrictions and limitations imposed by the Notes
Documents, the Credit Agreement, the Intercreditor Agreement or securities laws
generally, (i) the Pledged Collateral is and will continue to be freely
transferable and assignable and (ii) none of the Pledged Collateral is or
will be subject to any option, right of first refusal, shareholders agreement,
charter or bylaw provisions or contractual restriction of any nature that might
prohibit, impair, delay or otherwise affect the pledge of such Pledged
Collateral hereunder, the sale or disposition thereof pursuant hereto or the
exercise by the Collateral Agent of rights and remedies hereunder, other than,
in the case of any Pledged Collateral constituting Capital Stock in, or debt
securities of, any Person that is not a Wholly Owned Subsidiary, any of the
foregoing restrictions and limitations set forth in the organizational
documents or any related joint venture or similar agreements of such Person (to
the extent such restrictions and limitations cannot be waived without the prior
consent of any Person other than Symmetry or any Subsidiary);


 


(e) each of the Grantors has the power and authority to pledge the
Pledged Collateral pledged by it hereunder in the manner hereby done or
contemplated;


 


(f) no consent or approval of any Governmental Authority, any
securities exchange or any other Person was or is necessary to the validity of
the pledge effected hereby (other than such as have been obtained and are in
full force and effect);


 


(g) by virtue of the execution and delivery by the Grantors of this Agreement,
when any Pledged Securities are delivered to the Collateral Agent in accordance
with this Agreement, the Collateral Agent will obtain a legal, valid and
perfected lien upon and security interest in such Pledged Securities as
security for the payment and performance of the Notes Obligations; and


 


(h) the pledge effected hereby is effective to vest in the Collateral
Agent, for the benefit of the Secured Parties, the rights of the Collateral
Agent in the Pledged Collateral as set forth herein.


 


SECTION 2.04. Certification
of Limited Liability Company and Limited Partnership Interests. Each
Grantor agrees that, no later than the 30th day following the Issue
Date and at all times thereafter, each interest in any limited liability
company or limited partnership controlled by such Grantor and pledged hereunder
shall be represented by a certificate, shall be a “security” within the meaning
of Article 8 of the New York UCC and shall be governed by Article 8
of the New York UCC.


 


SECTION 2.05. Registration
in Nominee Name; Denominations. The Collateral Agent, on behalf of the
Secured Parties, shall have the right (in its sole and 


 


9

















 


absolute discretion) to hold the Pledged
Securities in its own name as pledgee, the name of its nominee (as pledgee or
as sub-agent) or the name of the applicable Grantor, endorsed or assigned in
blank or in favor of the Collateral Agent. Each Grantor will promptly give to
the Collateral Agent copies of any notices or other communications received by
it with respect to Pledged Securities registered in the name of such Grantor. The
Collateral Agent shall at all times have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger denominations
for any purpose consistent with this Agreement.


 


SECTION 2.06. Voting
Rights; Dividends and Interest. (a) 
Unless and until an Event of Default shall have occurred and be
continuing and the Collateral Agent shall have notified the Grantors that their
rights under this Section are being suspended:


 


(i) Each Grantor shall be entitled to exercise any and all voting and
other consensual rights and powers inuring to an owner of Pledged Capital Stock
or Pledged Debt Securities or any part thereof for any purpose consistent with
the terms of this Agreement, the Indenture and the other Notes Documents; provided
that such rights and powers shall not be exercised in any manner that could
reasonably be expected to materially and adversely affect the rights inuring to
an owner of any Pledged Capital Stock or Pledged Debt Securities or the rights
and remedies of the Collateral Agent or the other Secured Parties under this
Agreement, the Indenture or any other Notes Document or the ability of the
Collateral Agent or the other Secured Parties to exercise the same.


 


(ii) The Collateral Agent shall execute and deliver to each Grantor, or
cause to be executed and delivered to such Grantor, all such proxies, powers of
attorney and other instruments as such Grantor may reasonably request for the
purpose of enabling such Grantor to exercise the voting and/or consensual
rights and powers it is entitled to exercise pursuant to paragraph (i)
above.


 


(iii) Each Grantor shall be entitled to receive and retain any and all
dividends, interest, principal and other distributions paid on or distributed
in respect of the Pledged Capital Stock and Pledged Debt Securities to the
extent and only to the extent that such dividends, interest, principal and
other distributions are permitted by, and otherwise paid or distributed in
accordance with, the terms and conditions of the Indenture, the other Notes
Documents and applicable laws; provided that any noncash dividends,
interest, principal or other distributions that would constitute Pledged
Capital Stock or Pledged Debt Securities, whether resulting from a subdivision,
combination or reclassification of the outstanding Capital Stock of the issuer
of any Pledged Securities or received in exchange for Pledged Securities or any
part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such issuer may
be a party or otherwise, shall be and become part of the Pledged Collateral,
and, if received by any Grantor, shall not be commingled by such Grantor with
any of its other funds or property but shall be held separate and apart
therefrom, shall be held in trust for the benefit of the Collateral Agent and
shall be


 


10

















 


forthwith delivered
to the Collateral Agent in the form in which it shall have been so received
(with any necessary endorsement).


 


(b)  Upon the occurrence and during the
continuance of an Event of Default, after the Collateral Agent shall have
notified the Grantors of the suspension of their rights under
paragraph (a)(iii) of this Section, then all rights of any Grantor to
dividends, interest, principal or other distributions that such Grantor is
authorized to receive pursuant to paragraph (a)(iii) of this Section shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to receive
and retain such dividends, interest, principal or other distributions. All
dividends, interest, principal or other distributions received by any Grantor
contrary to the provisions of this Section shall be held in trust for the
benefit of the Collateral Agent, shall be segregated from other property or
funds of such Grantor and shall be forthwith delivered to the Collateral Agent
upon demand in the same form as so received (with any necessary endorsement). Any
and all money and other property paid over to or received by the Collateral
Agent pursuant to the provisions of this paragraph (b) shall be retained
by the Collateral Agent in an account to be established by the Collateral Agent
upon receipt of such money or other property and shall be applied in accordance
with the provisions of Section 4.02. After all Events of Default have been
cured or waived and the Collateral Agent shall have received an Officers’
Certificate to that effect, the Collateral Agent shall, promptly repay to each
Grantor (without interest) all dividends, interest, principal or other
distributions that such Grantor would otherwise be permitted to retain pursuant
to the terms of paragraph (a)(iii) of this Section and that remain in such
account.


 


(c)  Upon the occurrence and during the
continuance of an Event of Default, after the Collateral Agent shall have
notified the Grantors of the suspension of their rights under
paragraph (a)(i) of this Section, all rights of any Grantor to exercise
the voting and consensual rights and powers it is entitled to exercise pursuant
to paragraph (a)(i) of this Section, and the obligations of the Collateral
Agent under paragraph (a)(ii) of this Section, shall cease, and all such
rights shall thereupon become vested in the Collateral Agent, which shall have
the sole and exclusive right and authority to exercise such voting and
consensual rights and powers; provided that, unless the Collateral Agent
shall have received written objections thereto from the Trustee (acting in
accordance with the Indenture) or the Holders of at least 25% in aggregate
principal amount of the Securities, the Collateral Agent shall have the right
from time to time following the occurrence and during the continuance of an
Event of Default to permit the Grantors to exercise such rights.


 


(d)  Any notice given by the Collateral Agent to
the Grantors suspending their rights under paragraph (a) of this
Section (i) may be given by telephone if promptly confirmed in writing,
(ii) may be given to one or more of the Grantors at the same or different
times and (iii) may suspend the rights of the Grantors under paragraph (a)(i)
or paragraph (a)(iii) in part without suspending all such rights (as
specified by the Collateral Agent in its sole and absolute discretion) and
without waiving or otherwise affecting the Collateral Agent’s rights to give
additional notices from time to time suspending other rights so long as an
Event of Default has occurred and is continuing.


 


11

















 


ARTICLE III


 


Security
Interests in Personal Property


 


SECTION 3.01. Security
Interest. (a)  As security for the
payment or performance, as the case may be, in full of the Notes Obligations,
each Grantor hereby assigns and pledges to the Collateral Agent, its successors
and assigns, for the benefit of the Secured Parties, and hereby grants to the
Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, a security interest in, all right, title and interest in, to or under
any and all of the Article 9 Collateral now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the
future may acquire any right, title or interest, other than any portion thereof
constituting the Excluded Capital Stock.


 


(b)  Each Grantor hereby irrevocably authorizes
the Collateral Agent at any time and from time to time to file in any relevant
jurisdiction any initial financing statements (including fixture filings) with
respect to the Article 9 Collateral in which a security interest is
created by such Grantor hereunder or any part thereof and amendments thereto
that (i) identify the applicable Collateral (including by indicating the
Collateral to be “all assets” of such Grantor or words of similar effect as
being of an equal or lesser scope or with greater detail) and (ii) contain
the information required by Article 9 of the Uniform Commercial Code or other
applicable law of each applicable jurisdiction for the filing of any financing
statement or amendment, including (A) whether such Grantor is an organization,
the type of organization and any organizational identification number issued to
such Grantor and (B) in the case of a financing statement filed as a fixture
filing or covering Article 9 Collateral constituting minerals or the like
to be extracted or timber to be cut, a sufficient description of the real
property to which such Article 9 Collateral relates. Each Grantor agrees
to provide such information to the Collateral Agent promptly upon request.


 


Each Grantor also ratifies its authorization for the Collateral Agent
to file in any relevant jurisdiction any initial financing statements or
amendments thereto if filed prior to the date hereof.


 


The Collateral Agent is further authorized to file with the United
States Patent and Trademark Office or United States Copyright Office (or any
successor office or any similar office in any other country) such documents as
may be necessary or advisable for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Grantor, without the signature of any Grantor, and naming any Grantor or the
Grantors as debtors and the Collateral Agent as secured party.


 


Notwithstanding anything to the contrary contained herein, the
Collateral Agent shall have no responsibility for the preparing, recording,
filing, re-recording or re-filing of any financing statement, continuation
statement or other instrument in any public office.


 


12

















 


(c)  The Security Interest is granted as security
only and shall not subject the Collateral Agent or any other Secured Party to,
or in any way alter or modify, any obligation or liability of any Grantor with
respect to or arising out of the Article 9 Collateral.


 


(d)  Notwithstanding anything herein to the
contrary, in no event shall the security interest granted hereunder attach to
any contract or agreement to which any Grantor is a party or any of its rights
or interests thereunder if and for so long as the grant of such security
interest shall constitute or result in (i) the unenforceability of any
right of such Grantor thereunder or (ii) a breach or termination under the
terms of, or a default under, any such contract or agreement (other than to the
extent that any such term would be rendered ineffective pursuant to
Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other
applicable law or principles of equity); provided, that such security
interest shall attach immediately at such time as the condition causing such
unenforceability, breach or termination shall be remedied or shall otherwise
cease to exist and, to the extent severable, shall attach immediately to any
portion of such contract or agreement that does not result in any of the
consequences specified in this paragraph, including any Proceeds of such
contract or agreement.


 


SECTION 3.02. Representations
and Warranties. The Grantors jointly and severally represent and warrant to
the Collateral Agent, for the benefit of the Secured Parties, that:


 


(a) Each Grantor has good and valid rights in and title to the
Article 9 Collateral with respect to which it has purported to grant a
Security Interest hereunder and has full power and authority to grant to the
Collateral Agent the Security Interest in such Article 9 Collateral
pursuant hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent or approval of
any other Person (other than any consent or approval that has been obtained).


 


(b) The Perfection Certificate has been duly prepared, completed and
executed, and the information set forth therein, including the exact legal name
of each Grantor, is correct and complete as of the Issue Date.


 


(c) Schedule III hereto sets forth, as of the date hereof, for each
Grantor, (i) all United States registered Patents and Patent applications
owned by such Grantor, including the name of the registered owner, type,
registration or application number and the expiration date (if already
registered) thereof, (ii) all United States registered Trademarks and
Trademark applications owned by such Grantor, including the name of the
registered owner, the registration or application number and the expiration
date (if already registered) thereof, and (iii) all United States
registered Copyrights and Copyright applications owned by such Grantor,
including the name of the registered owner, title and, if applicable, the
registration number of each such Copyright or Copyright application.


 


13

















 


(d) Schedule IV hereto sets forth, as of the date hereof, each
Commercial Tort Claim in respect of which a complaint or a counterclaim has
been filed by any Grantor seeking damages in an amount of US$1,000,000 or more.


 


(e) The Security Interest constitutes (i) a legal and valid
security interest in all the Article 9 Collateral securing the payment and
performance of the Notes Obligations, (ii) subject to the filings
described in Section 3.02(b), a perfected security interest in all
Article 9 Collateral in which a security interest may be perfected by
filing, recording or registering a financing statement or analogous document in
the United States (or any political subdivision thereof) and its territories
and possessions pursuant to the Uniform Commercial Code and (iii) a
security interest that shall be perfected in all Article 9 Collateral in which
a security interest may be perfected upon the receipt and recording of the IP
Security Agreements with the United States Patent and Trademark Office and the
United States Copyright Office. The Security Interest is and shall be prior to
any other Lien on any of the Article 9 Collateral, other than Permitted
Liens expressly permitted to be prior to the Security Interest under the
Indenture.


 


(f) The Article 9 Collateral is owned by the Grantors free and
clear of any Lien, except for Permitted Liens. None of the Grantors has filed
or consented to the filing of (i) any financing statement or analogous
document under the Uniform Commercial Code or any other applicable laws
covering any Article 9 Collateral, (ii) any assignment in which any Grantor
assigns any Collateral or any security agreement or similar instrument covering
any Article 9 Collateral with the United States Patent and Trademark
Office or the United States Copyright Office or (iii) any assignment in
which any Grantor assigns any Article 9 Collateral or any security
agreement or similar instrument covering any Article 9 Collateral with any
foreign governmental, municipal or other office, which financing statement or
analogous document, assignment, security agreement or similar instrument is
still in effect, except, in each case, for Permitted Liens.


 


SECTION 3.03. Covenants.
(a)  Symmetry and the Company will
furnish to the Collateral Agent promptly (and, in any event, within 15 days of
the occurrence of any such change) written notice of any change (i) in any
Grantor’s legal name, as set forth in its documents or organization, (ii) in
the location of any Grantor’s chief executive office, (iii) in any Grantor’s
form of organization or corporate structure (including as a result of any
merger or consolidation), (iv) in any Grantor’s Federal Taxpayer Identification
Number or identification number, if any, issued to it by the jurisdiction of
its organization or (v) in the jurisdiction of any Grantor’s organization.


 


(b)  Each Grantor agrees to maintain, at its own
cost and expense, complete and accurate records with respect to the
Article 9 Collateral owned by it, and in which it has granted a security
interest hereunder, in accordance with GAAP and applicable law, and, at such
time or times as the Collateral Agent may reasonably request, promptly to
prepare and deliver to the Collateral Agent a duly certified schedule or
schedules in form and detail satisfactory to the Collateral Agent showing the
identity, amount and location of any and all such Article 9 Collateral.


 


14

















 


(c)  Within 90 days after the end of each fiscal
year of Symmetry, the Company will furnish to the Collateral Agent an Officers’
Certificate setting forth (i) any Capital Stock or Indebtedness owned by any
Grantor, (ii) any Intellectual Property owned by any Grantor and (iii) any
Commercial Tort Claims in respect of which a complaint or a counterclaim has
been filed by any Grantor and that, in each case, (A) if so owned or filed by a
Grantor as of the Issue Date, would have been required to be set forth on the
applicable schedule to this Agreement pursuant to the terms hereof and (B) have
not been set forth on any such schedule to this Agreement or in a certificate
previously delivered pursuant to this paragraph.


 


(d)  Each Grantor shall, at its own expense, take
any and all actions necessary to defend title to the Article 9 Collateral
in which it has granted a security interest hereunder against all Persons and
to defend the Security Interest of the Collateral Agent in such Article 9
Collateral and the priority thereof against any Lien, other than Permitted
Liens.


 


(e)  Each Grantor agrees, at its own expense, to
execute, acknowledge, deliver and cause to be duly filed all such further
instruments and documents and take all such actions as may be required by
applicable law or as the Collateral Agent (acting in accordance with Section
7.01(b)) may from time to time reasonably request to better assure, preserve,
protect and perfect the Security Interest and the rights and remedies created
hereby, including the payment of any fees and taxes required in connection with
the execution and delivery of this Agreement, the granting of the Security
Interest and the filing of any financing statements (including fixture filings)
or other documents in connection herewith or therewith.


 


Without limiting the generality of the foregoing, each Grantor hereby
authorizes the Collateral Agent, with prompt notice thereof to the Grantors, to
supplement this Agreement by supplementing Schedule III or adding
additional schedules hereto to specifically identify any asset or item that may
constitute Copyrights, Licenses, Patents or Trademarks; provided that
any Grantor shall have the right, exercisable within 10 days after it has
been notified by the Collateral Agent of the specific identification of such
Collateral, to advise the Collateral Agent in writing of any inaccuracy of the
representations and warranties made by such Grantor hereunder with respect to
such Collateral. Each Grantor agrees that it will use its best efforts to take
such action as shall be necessary in order that all representations and
warranties hereunder shall be true and correct with respect to such Collateral
within 30 days after the date it has been notified by the Collateral Agent
of the specific identification of such Collateral.


 


(f)  The Collateral Agent and such Persons as the
Collateral Agent may reasonably designate shall have the right, at the Grantors’
own cost and expense, upon reasonable prior notice, to inspect the
Article 9 Collateral subject to the Security Interest, all records related
thereto (and to make extracts and copies from such records) and the premises
upon which any of such Article 9 Collateral is located, to discuss the Grantors’
affairs, finances and condition with the officers of the Grantors and their
independent accountants and to verify under reasonable procedures the validity,
amount, quality, quantity, value, condition and status of, or any other matter
relating to, the Article 9 


 


15

















 


Collateral subject to the
Security Interest (including, in the case of Accounts or Article 9
Collateral in the possession of any third person, by contacting Account Debtors
or the third person possessing such Article 9 Collateral for the purpose
of making such a verification), all at such reasonable times and as often as
reasonably requested. The Collateral Agent shall have the absolute right to
share any information it gains from such inspection or verification with any
other Secured Party.


 


(g)  At its option, the Collateral Agent may
discharge past due taxes, assessments, charges, fees or Liens at any time
levied or placed on the Article 9 Collateral (other than Permitted Liens),
and may pay for the maintenance and preservation of the Article 9
Collateral subject to the Security Interest to the extent any Grantor fails to
do so as required by the Indenture or this Agreement, and each Grantor jointly
and severally agrees to reimburse the Collateral Agent on demand for any
payment made or any expense incurred by the Collateral Agent pursuant to the
foregoing authorization; provided that nothing in this paragraph shall
be interpreted as excusing any Grantor from the performance of, or imposing any
obligation on the Collateral Agent or any other Secured Party to cure or
perform, any covenants or other promises of any Grantor with respect to taxes,
assessments, charges, fees or Liens and maintenance of properties as set forth
herein or in the other Notes Documents.


 


(h)  If at any time any Grantor shall take a
security interest in any property of an Account Debtor or any other Person to
secure payment and performance of an Account, such Grantor shall promptly
assign such security interest to the Collateral Agent, for the benefit of the
Secured Parties. Such assignment need not be filed of public record unless
necessary to continue the perfected status of the security interest against
creditors of and transferees from the Account Debtor or other Person granting
the security interest.


 


(i)  Each Grantor shall remain liable to observe
and perform all the conditions and obligations to be observed and performed by
it under each contract, agreement or instrument relating to the Article 9
Collateral subject to the Security Interest, all in accordance with the terms
and conditions thereof, and each Grantor jointly and severally agrees to
indemnify and hold harmless the Collateral Agent and the other Secured Parties
from and against any and all liability for such performance.


 


(j)  Each of the Grantors will maintain, with
financially sound and reputable insurance companies, insurance in such amounts
(with no greater risk retention) and against such risks as are customarily
maintained by companies of established repute engaged in the same or similar
businesses operating in the same or similar locations. Each such policy of
insurance maintained by Grantors (other than policies of the type in respect of
which such actions customarily are not required) shall (i) in the case of each
liability insurance policy, name the Collateral Agent, on behalf of the Secured
Parties, as an additional insured thereunder, (ii) in the case of each
casualty insurance policy, contain a loss payable clause or endorsement that
names the Collateral Agent, on behalf of the Secured Parties, as the loss payee
thereunder and (iii) provide for at least 30 days’ (or such shorter number
of days may be agreed to by the Collateral Agent) prior written notice to the
Collateral Agent of any cancellation of such policy. Upon the Collateral 


 


16

















 


Agent’s request, Symmetry and
the Company will furnish to the Collateral Agent information in reasonable
detail as to the insurance so maintained. Each Grantor irrevocably makes,
constitutes and appoints the Collateral Agent (and all officers, employees or
agents designated by the Collateral Agent) as such Grantor’s true and lawful
agent (and attorney-in-fact) for the purpose, during the continuance of an
Event of Default, of making, settling and adjusting claims in respect of
Article 9 Collateral subject to the Security Interest under policies of
insurance, endorsing the name of such Grantor on any check, draft, instrument
or other item of payment for the proceeds of such policies of insurance and for
making all determinations and decisions with respect thereto. All sums
disbursed by the Collateral Agent in connection with this paragraph, including
reasonable attorneys’ fees, court costs, expenses and other charges relating
thereto, shall be payable, upon demand, by the Grantors to the Collateral Agent
and shall be additional Obligations secured hereby.


 


(k)  Each Grantor shall maintain, in customary
form and manner, records of its Chattel Paper and its books, records and
documents evidencing or pertaining thereto.


 


SECTION 3.04. Other
Actions. In order to further ensure the attachment, perfection and priority
of, and the ability of the Collateral Agent to enforce, the Security Interest,
each Grantor agrees, in each case at such Grantor’s own expense, to take the
following actions with respect to the following Article 9 Collateral owned
by it and subject to the Security Interest:


 


(a) Instruments. If any Grantor shall at any time hold or
acquire any Instruments subject to the Security Interest, such Grantor shall
forthwith endorse, assign and deliver the same to the Collateral Agent,
accompanied by such instruments of transfer or assignment duly executed in
blank as the Collateral Agent may from time to time reasonably request.


 


(b) Deposit Accounts. Each Grantor shall use its commercially
reasonable efforts, for each Deposit Account that such Grantor at any time
opens or maintains (other than payroll and petty cash accounts, the aggregate
amount on deposit in all of which accounts does not exceed US$1,000,000 at any
time), to cause the depositary bank to execute and deliver to the Collateral
Agent a Deposit Account Control Agreement with respect to such Deposit Account.


 


(c) Investment Property. Except to the extent otherwise provided
in Article III, if any Grantor shall at any time hold or acquire any
certificated securities subject to the Security Interest, such Grantor shall
forthwith endorse, assign and deliver the same to the Collateral Agent,
accompanied by such instruments of transfer or assignment duly executed in
blank as the Collateral Agent may from time to time specify. If any securities
now or hereafter acquired by any Grantor and subject to the Security Interest
are uncertificated and are issued to such Grantor or its nominee directly by
the issuer thereof, such Grantor shall promptly notify the Collateral Agent
thereof and, at the Collateral Agent’s request and option (made in accordance
with Section 7.01(b)), pursuant to an


 


17

















 


agreement
customary in form and substance, either (i) cause the issuer to agree to
comply with instructions from the Collateral Agent as to such securities,
without further consent of any Grantor or such nominee, or (ii) arrange
for the Collateral Agent to become the registered owner of the securities. If
any securities, whether certificated or uncertificated, or other investment
property now or hereafter acquired by any Grantor and subject to the Security
Interest are held by such Grantor or its nominee through a securities
intermediary or commodity intermediary, such Grantor shall promptly notify the
Collateral Agent thereof and, at the Collateral Agent’s request and option
(made in accordance with Section 7.01(b)), pursuant to an agreement
customary in form and substance, either (i) cause such securities
intermediary or commodity intermediary, as the case may be, to agree to comply
with entitlement orders or other instructions from the Collateral Agent to such
securities intermediary as to such security entitlements or, as the case may
be, to apply any value distributed on account of any commodity contract as
directed by the Collateral Agent to such commodity intermediary, in each case
without further consent of any Grantor or such nominee, or (ii) in the
case of Investment Property held through a securities intermediary, arrange for
the Collateral Agent to become the entitlement holder with respect to such
investment property, with the Grantor being permitted, only with the consent of
the Collateral Agent, to exercise rights to withdraw or otherwise deal with
such investment property. The Collateral Agent agrees with each of the Grantors
that the Collateral Agent shall not give any such entitlement orders or
instructions or directions to any such issuer, securities intermediary or
commodity intermediary, and shall not withhold its consent to the exercise of
any withdrawal or dealing rights by any Grantor, unless an Event of Default has
occurred and is continuing or, after giving effect to any such investment and
withdrawal rights, would occur. The provisions of this paragraph shall not
apply to any financial assets credited to a securities account for which the
Collateral Agent is the securities intermediary.


 


(d) Electronic Chattel Paper and Transferable Records. If any
Grantor at any time holds or acquires an interest in any electronic chattel
paper or any “transferable record,” as that term is defined in Section 201
of the Federal Electronic Signatures in Global and National Commerce Act, or in
Section 16 of the Uniform Electronic Transactions Act as in effect in any
relevant jurisdiction, such Grantor shall promptly notify the Collateral Agent
thereof and, at the request of the Collateral Agent, shall take such action as
the Collateral Agent may reasonably request (acting in accordance with
Section 7.01(b)) to vest in the Collateral Agent control under
New York UCC Section 9-105 of such electronic chattel paper or
control under Section 201 of the Federal Electronic Signatures in Global
and National Commerce Act or, as the case may be, Section 16 of the
Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of
such transferable record. The Collateral Agent agrees with such Grantor that
the Collateral Agent will arrange, pursuant to customary procedures and so long
as such procedures will not result in the Collateral Agent’s loss of control,
for the Grantor to make alterations to the electronic chattel paper or
transferable record permitted under UCC Section 9-105 or, as the case may
be, Section 201 of the


 


18

















 


Federal
Electronic Signatures in Global and National Commerce Act or Section 16 of
the Uniform Electronic Transactions Act for a party in control to allow without
loss of control, unless an Event of Default has occurred and is continuing or
would occur after taking into account any action by such Grantor with respect
to such electronic chattel paper or transferable record.


 


(e) Letter-of-Credit Rights. If any Grantor is at any time a
beneficiary under a letter of credit now or hereafter issued in favor of such
Grantor, the rights under which are subject to the Security Interest, such
Grantor shall promptly notify the Collateral Agent thereof and, at the request
and option of the Collateral Agent (made in accordance with Section 7.01(b)),
such Grantor shall, pursuant to an agreement customary in form and substance,
either (i) arrange for the issuer and any confirmer of such letter of
credit to consent to an assignment to the Collateral Agent of the proceeds of
any drawing under the letter of credit or (ii) arrange for the Collateral
Agent to become the transferee beneficiary of the letter of credit, with the
Collateral Agent agreeing, in each case, that the proceeds of any drawing under
the letter of credit are to be paid to the applicable Grantor unless an Event
of Default has occurred or is continuing.


 


(f) Commercial Tort Claims. If any Grantor shall at any time
hold or acquire a commercial tort claim in an amount reasonably estimated to
exceed US$1,000,000, such Grantor shall promptly notify the Collateral Agent
thereof in a writing signed by such Grantor including a summary description of
such claim and grant to the Collateral Agent in such writing a security
interest therein and in the proceeds thereof, all upon the terms of this
Agreement, with such writing to be customary in form and substance.


 


(g) Collateral Access Agreements. Each Grantor shall use
commercially reasonable efforts to obtain a Collateral Access Agreement from
the lessor of each leased property, mortgagee of owned property or bailee or
consignee with respect to any warehouse, processor or converter facility or
other location where Collateral is stored or located, which agreement or letter
shall provide access rights and contain a waiver or subordination of all Liens
or claims that the landlord, mortgagee, bailee or consignee may assert against
the Collateral at that location. Each Grantor shall timely and fully pay and
perform its obligations under all leases and other agreements with respect to
each leased location or third party warehouse where any Collateral is or may be
located.


 


SECTION 3.05. Covenants
Regarding Patent, Trademark and Copyright Collateral. (a)  Each Grantor agrees that it will not take or
omit take to any action (and will exercise commercially reasonable efforts to
prevent its licensees from taking or omitting to take any action) whereby any
Patent that is material to the conduct of such Grantor’s business may become
invalidated or dedicated to the public, and agrees that it shall continue to
mark any products covered by a Patent with the relevant patent number as
necessary and sufficient to establish and preserve its maximum rights under
applicable patent laws.


 


19

















 


(b)  Each Grantor (either itself or through its
licensees or its sublicensees) will, for each Trademark material to the conduct
of such Grantor’s business, (i) maintain such Trademark in full force free
from any claim of abandonment or invalidity for non-use, (ii) maintain the
quality of products and services offered under such Trademark,
(iii) display such Trademark with notice of Federal or foreign
registration to the extent necessary and sufficient to establish and preserve
its maximum rights under applicable law and (iv) not knowingly use or
knowingly permit the use of such Trademark in violation of any third party
rights.


 


(c)  Each Grantor (either itself or through its
licensees or sublicensees) will, for each work covered by a material Copyright,
continue to publish, reproduce, display, adopt and distribute the work with
appropriate copyright notice as necessary and sufficient to establish and
preserve its maximum rights under applicable copyright laws.


 


(d)  Each Grantor shall notify the Collateral
Agent promptly if it knows or has reason to know that any Patent, Trademark or
Copyright material to the conduct of its business may become abandoned, lost or
dedicated to the public, or of any materially adverse determination or development
(including the institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office, United States
Copyright Office or any court or similar office of any country) regarding such
Grantor’s ownership of any Patent, Trademark or Copyright, its right to
register the same, or its right to keep and maintain the same.


 


(e)  In no event shall any Grantor, either itself
or through any agent, employee, licensee or designee, file an application for
any Patent, Trademark or Copyright (or for the registration of any Trademark or
Copyright) with the United States Patent and Trademark Office, United States
Copyright Office or any office or agency in any political subdivision of the
United States or in any other country or any political subdivision thereof,
unless it promptly informs the Collateral Agent, and, upon request of the
Collateral Agent, executes and delivers any and all IP Security Agreements and
other instruments, documents and papers as the Collateral Agent may reasonably
request (acting in accordance with Section 7.01(b)) to evidence the Collateral
Agent’s security interest in such Patent, Trademark or Copyright, and each
Grantor hereby appoints the Collateral Agent as its attorney-in-fact to execute
and file such writings for the foregoing purposes, all acts of such attorney
being hereby ratified and confirmed; such power, being coupled with an
interest, is irrevocable.


 


(f)  Each Grantor will take all necessary steps
that are consistent with the practice in any proceeding before the United
States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the United States or in any
other country or any political subdivision thereof, to maintain and pursue each
material application relating to the Patents, Trademarks or Copyrights (and to
obtain the relevant grant or registration) and to maintain each issued Patent
and each registration of the Trademarks and Copyrights that is material to the
conduct of any Grantor’s business, including timely filings of applications for
renewal, affidavits of use, affidavits of incontestability and payment of
maintenance fees, and, if consistent with good 


 


20

















 


business judgment, to initiate
opposition, interference and cancelation proceedings against third parties.


 


(g)  In the event that any Grantor has reason to
believe that any Article 9 Collateral consisting of a Patent, Trademark or
Copyright material to the conduct of any Grantor’s business has been or is
about to be infringed, misappropriated or diluted by a third party, such
Grantor promptly shall notify the Collateral Agent and shall, if consistent
with good business judgment, promptly sue for infringement, misappropriation or
dilution and to recover any and all damages for such infringement,
misappropriation or dilution, and take such other actions as are appropriate
under the circumstances to protect such Article 9 Collateral.


 


(h)  Upon and during the continuance of an Event
of Default, each Grantor shall use its commercially reasonable efforts to
obtain all requisite consents or approvals by the licensor of each Copyright
License, Patent License or Trademark License to effect the assignment of all
such Grantor’s right, title and interest thereunder to the Collateral Agent or
its designee.


 


ARTICLE IV


 


Remedies


 


SECTION 4.01. Remedies
Upon Default. Upon the occurrence and during the continuance of an Event of
Default, each Grantor agrees to deliver each item of Collateral to the
Collateral Agent on demand, and it is agreed that the Collateral Agent shall
have the right to take any of or all the following actions at the same or
different times:  (a) with respect to
any Article 9 Collateral consisting of Intellectual Property, on demand,
to cause the Security Interest to become an assignment, transfer and conveyance
of any of or all such Article 9 Collateral by the applicable Grantors to the
Collateral Agent, or to license or sublicense, whether general, special or
otherwise, and whether on an exclusive or nonexclusive basis, any such Article
9 Collateral throughout the world on such terms and conditions and in such
manner as the Collateral Agent shall determine (other than in violation of any
then-existing licensing arrangements to the extent that waivers cannot be
obtained), and (b) with or without legal process and with or without prior
notice or demand for performance, to take possession of the Article 9
Collateral and without liability for trespass to enter any premises where the
Article 9 Collateral may be located for the purpose of taking possession of or
removing the Article 9 Collateral and, generally, to exercise any and all
rights afforded to a secured party under the Uniform Commercial Code or other applicable
law. Without limiting the generality of the foregoing, each Grantor agrees that
the Collateral Agent shall have the right, subject to the mandatory
requirements of applicable law, to sell or otherwise dispose of all or any part
of the Collateral at a public or private sale or at any broker’s board or on
any securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale of securities (if it deems it advisable to do so)
to restrict the prospective bidders or purchasers to Persons who will represent
and agree that they are purchasing the Collateral for their own account for
investment and not with a view to the distribution or sale


 


21
















 


thereof, and
upon consummation of any such sale the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any sale of Collateral shall hold
the property sold absolutely, free from any claim or right on the part of any
Grantor, and each Grantor hereby waives (to the extent permitted by law) all
rights of redemption, stay and appraisal which such Grantor now has or may at
any time in the future have under any rule of law or statute now existing or
hereafter enacted.


 


The Collateral Agent shall give the applicable Grantors 10 days’
written notice (which each Grantor agrees is reasonable notice within the
meaning of Section 9-611 of the New York UCC or its equivalent in
other jurisdictions) of the Collateral Agent’s intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker’s board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or
places as the Collateral Agent may fix and state in the notice (if any) of such
sale. At any such sale, the Collateral, or portion thereof, to be sold may be
sold in one lot as an entirety or in separate parcels, as the Collateral Agent
may (in its sole and absolute discretion) determine. The Collateral Agent shall
not be obligated to make any sale of any Collateral if it shall determine not
to do so, regardless of the fact that notice of sale of such Collateral shall
have been given. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale
may, without further notice, be made at the time and place to which the same
was so adjourned. In case any sale of all or any part of the Collateral is made
on credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any
such purchaser or purchasers shall fail to take up and pay for the Collateral
so sold and, in case of any such failure, such Collateral may be sold again
upon like notice. At any public (or, to the extent permitted by law, private)
sale made pursuant to this Agreement, any Secured Party may bid for or
purchase, free (to the extent permitted by law) from any right of redemption,
stay, valuation or appraisal on the part of any Grantor (all said rights being
also hereby waived and released to the extent permitted by law), the Collateral
or any part thereof offered for sale and may make payment on account thereof by
using any claim then due and payable to such Secured Party from any Grantor as
a credit against the purchase price, and such Secured Party may, upon
compliance with the terms of sale, hold, retain and dispose of such property
without further accountability to any Grantor therefor. For purposes hereof, a
written agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof; the Collateral Agent shall be free to carry out such
sale pursuant to such agreement and no Grantor shall be entitled to the return
of the Collateral or any portion thereof subject thereto, notwithstanding the
fact that after the Collateral Agent shall have entered into such an agreement
all Events of Default shall have been remedied and the Notes Obligations paid
in full. As an alternative to exercising the power of sale herein conferred
upon it, the Collateral Agent may proceed by a suit or suits at law or in
equity 


 


22

















 


to foreclose this Agreement and
to sell the Collateral or any portion thereof pursuant to a judgment or decree
of a court or courts having competent jurisdiction or pursuant to a proceeding
by a court-appointed receiver. Any sale pursuant to the provisions of this
Section shall be deemed to conform to the commercially reasonable standards as
provided in Section 9-610(b) of the New York UCC or its equivalent in
other jurisdictions.


 


SECTION 4.02. Application of Proceeds. The Collateral Agent
shall apply the proceeds of any collection or sale of any Collateral, and any
Collateral consisting of cash, as follows:


 


FIRST, to the payment of all costs and
expenses incurred by the Collateral Agent in connection with such collection or
sale or otherwise in connection with this Agreement or any other Notes
Document, including all court costs and the fees and expenses of its agents and
legal counsel, the repayment of all advances made by the Collateral Agent
hereunder or under any other Notes Document on behalf of any Grantor, any other
costs or expenses incurred in connection with the exercise of any right or
remedy hereunder or under any other Notes Document and any amounts due to the
Collateral Agent under Section 6.03;


 


SECOND, to distribution to the Trustee, for
application in accordance with the Indenture; and


 


THIRD, to the extent the Collateral Agent
shall have been informed in writing by the Trustee that all Notes Obligations
(other than contingent obligations) shall have been indefeasibly paid in full,
to the Grantors, their successors or assigns, or as a court of competent jurisdiction
may otherwise direct.


 


The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Collateral Agent or of the officer making the sale shall be
a sufficient discharge to the purchaser or purchasers of the Collateral so sold
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent
or such officer or be answerable in any way for the misapplication thereof.


 


SECTION 4.03. Grant of License to Use Intellectual Property. For
the purpose of enabling the Collateral Agent to exercise rights and remedies
under this Agreement at such time as the Collateral Agent shall be lawfully
entitled to exercise such rights and remedies, each Grantor hereby grants to
the Collateral Agent an irrevocable, nonexclusive license (exercisable without
payment of royalty or other compensation to the Grantors) to use, license or
sublicense any of the Article 9 Collateral consisting of Intellectual
Property now owned or hereafter acquired by such Grantor, and wherever the same
may be located, and including in such license reasonable access to all media in
which any of the licensed items may be recorded or stored and to all computer
software 


 


23

















 


and programs used for the compilation or
printout thereof. The rights conferred by such license may be exercised, at the
option of the Collateral Agent, upon the occurrence and during the continuation
of an Event of Default; provided that any license, sublicense or other
transaction entered into by the Collateral Agent in accordance herewith shall
be binding upon the Grantors notwithstanding any subsequent cure of an Event of
Default.


 


SECTION 4.04. Securities Act. In view of the position of the
Grantors in relation to the Pledged Collateral, or because of other current or
future circumstances, a question may arise under the Securities Act, or any
similar statute hereafter enacted analogous in purpose or effect (the
Securities Act and any such similar statute as from time to time in effect
being called the “Federal Securities Laws”) with respect to any
disposition of the Pledged Collateral permitted hereunder. Each Grantor
understands that compliance with the Federal Securities Laws might very
strictly limit the course of conduct of the Collateral Agent if the Collateral
Agent were to attempt to dispose of all or any part of the Pledged Collateral,
and might also limit the extent to which or the manner in which any subsequent
transferee of any Pledged Collateral could dispose of the same. Similarly,
there may be other legal restrictions or limitations affecting the Collateral
Agent in any attempt to dispose of all or part of the Pledged Collateral under
applicable Blue Sky or other state securities laws or similar laws analogous in
purpose or effect. Each Grantor recognizes that in light of such restrictions
and limitations the Collateral Agent may, with respect to any sale of the
Pledged Collateral, limit the purchasers to those who will agree, among other
things, to acquire such Pledged Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that in light of such restrictions and
limitations, the Collateral Agent, in its sole and absolute discretion
(a) may proceed to make such a sale whether or not a registration
statement for the purpose of registering such Pledged Collateral or part
thereof shall have been filed under the Federal Securities Laws and
(b) may approach and negotiate with a single potential purchaser to effect
such sale. Each Grantor acknowledges and agrees that any such sale might result
in prices and other terms less favorable to the seller than if such sale were a
public sale without such restrictions. In the event of any such sale, the
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Collateral at a price that the Collateral Agent, in its
sole and absolute discretion, may in good faith deem reasonable under the
circumstances, notwithstanding the possibility that a substantially higher
price might have been realized if the sale were deferred until after
registration as aforesaid or if more than a single purchaser were approached. The
provisions of this Section will apply notwithstanding the existence of a public
or private market upon which the quotations or sales prices may exceed
substantially the price at which the Collateral Agent sells.


 


SECTION 4.05. Registration. Each Grantor agrees that, upon the
occurrence and during the continuance of an Event of Default, if for any reason
the Collateral Agent desires to sell any of the Pledged Collateral at a public
sale, it will, at any time and from time to time, upon the written request of
the Collateral Agent, use its best efforts to take or to cause the issuer of
such Pledged Collateral to take such action and prepare, distribute and/or file
such documents, as are required or advisable in the reasonable opinion of
counsel for the Collateral Agent to permit the public sale of such 


 


24

















 


Pledged Collateral. Each Grantor further
agrees to indemnify, defend and hold harmless the Collateral Agent, each other
Secured Party, any underwriter and their respective officers, directors,
affiliates and controlling persons from and against all loss, liability,
expenses, costs of counsel (including, without limitation, reasonable fees and
expenses to the Collateral Agent of legal counsel), and claims (including the
costs of investigation) that they may incur insofar as such loss, liability,
expense or claim arises out of or is based upon any alleged untrue statement of
a material fact contained in any prospectus (or any amendment or supplement
thereto) or in any notification or offering circular, or arises out of or is
based upon any alleged omission to state a material fact required to be stated
therein or necessary to make the statements in any thereof not misleading,
except insofar as the same may have been caused by any untrue statement or
omission based upon information furnished in writing to such Grantor or the
issuer of such Pledged Collateral by the Collateral Agent or any other Secured
Party expressly for use therein. Each Grantor further agrees, upon such written
request referred to above, to use its best efforts to qualify, file or
register, or cause the issuer of such Pledged Collateral to qualify, file or
register, any of the Pledged Collateral under the Blue Sky or other securities
laws of such states as may be requested by the Collateral Agent and keep
effective, or cause to be kept effective, all such qualifications, filings or
registrations. Each Grantor will bear all costs and expenses of carrying out
its obligations under this Section. Each Grantor acknowledges that there is no
adequate remedy at law for failure by it to comply with the provisions of this
Section and that such failure would not be adequately compensable in damages,
and therefore agrees that its agreements contained in this Section may be
specifically enforced.


 


SECTION 4.06. Concerning Pledged Securities. Notwithstanding
anything to the contrary contained in this Agreement or any other Notes
Document, the Collateral Agent, on behalf of the Secured Parties, covenants and
agrees that, to the extent that separate financial statements of any Subsidiary
of Symmetry would be required by the rules of the SEC due to the fact that the
Notes Obligations, or any part thereof, are secured by the Capital Stock,
Intercompany Notes or other securities of such Subsidiary, it will at no time
realize upon any portion of such Capital Stock, Intercompany Notes and other
securities of such Subsidiary constituting Collateral with an aggregate value
in excess of 19.999% of the aggregate principal amount of the Securities outstanding
at such time. For purposes of this Section, the value of the Capital Stock,
Intercompany Notes and other securities of any Subsidiary of Symmetry
constituting Collateral at any time shall be equal to the aggregate principal
amount, par value or book value of such securities as carried by the Company at
such time, or the market value of such securities at such time, whichever is
the greatest, as such terms are interpreted by the SEC under Rule 3-16 of
Regulation S-X under the Securities Act.


 


ARTICLE V



Indemnity, Subrogation and Subordination


 


SECTION 5.01. Indemnity and Subrogation. The Company agrees that
in the event any assets of any Grantor shall be sold pursuant to this Agreement
or any other Security Document to satisfy in whole or in part an obligation of
the Company owed to 


 


25

















 


any Secured Party, the Company shall
indemnify such Grantor in an amount equal to the greater of the book value or
the fair market value of the assets so sold.


 


SECTION 5.02. Contribution and Subrogation. Each Grantor (a “Contributing
Party”) agrees (subject to Section 5.03) that, in the event assets of
any other Grantor shall be sold pursuant to any Security Document to satisfy
any Notes Obligation and such other Grantor (the “Claiming Party”) shall
not have been fully indemnified as provided in Section 5.01, the
Contributing Party shall indemnify the Claiming Party in an amount equal to the
greater of the book value or the fair market value of such assets, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Party on the date hereof (or, in the case of any Grantor becoming
a party hereto pursuant to Section 6.13, the date of the supplement hereto
executed and delivered by such Grantor) and the denominator shall be the
aggregate net worth of all the Grantors (other than the Company) on the date
hereof (or, in the case of any Grantor becoming a party hereto pursuant to
Section 6.13, the date of the supplement hereto executed and delivered by
such Grantor). Any Contributing Party making any payment to a Claiming Party
pursuant to this Section shall be subrogated to the rights of such Claiming
Party under Section 5.01 to the extent of such payment.


 


SECTION 5.03. Subordination. (a) 
Notwithstanding any provision of this Agreement to the contrary, all
rights of the Grantors under Sections 5.01 and 5.02 and all other rights
of indemnity, contribution or subrogation under applicable law or otherwise
shall be fully subordinated to the indefeasible payment in full in cash of the
Notes Obligations. No failure on the part of any Grantor to make the payments
required by Sections 5.01 and 5.02 (or any other payments required under
applicable law or otherwise) shall in any respect limit the obligations and
liabilities of any Grantor with respect to its obligations hereunder, and each
Grantor shall remain liable for the full amount of its obligations hereunder.


 


ARTICLE VI



Miscellaneous


 


SECTION 6.01. Notices. (a) 
Except in the case of notices and other communications expressly
permitted to be given by telephone (and subject to paragraph (b) below),
all notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by facsimile, as follows:


 


(i) if to any Grantor, to it at 28 West 44th
Street, 16th Floor, New York, NY 10036, Attention: General Counsel (Fax
No. (646) 429-1541), it being understood that any notice provided to
Symmetry shall be deemed to have been provided to each Grantor; and


 


(ii) if to the Collateral Agent, to The Bank
of New York, 101 Barclay Street, Floor 8W, New York, NY 10286, Attention:
Corporate Finance Group (Fax No. (732) 667-9190).


 


26

















 


(b)  Any party hereto may change
its address or fax number for notices and other communications hereunder by
notice to the other parties hereto. All notices and other communications given
to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.


 


SECTION 6.02. Waivers; Amendment. (a)  No failure or delay by the Collateral Agent
or any other Secured Party in exercising any right or power hereunder or under
any other Notes Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Collateral Agent and the other Secured Parties
hereunder and under the other Notes Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure by any Grantor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Grantor in any case shall entitle any Grantor to any
other or further notice or demand in similar or other circumstances.


 


(b)  Neither this Agreement nor
any provision hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Collateral Agent and the
Grantor or Grantors with respect to which such waiver, amendment or
modification is to apply, subject to any consent required under the Indenture. The
Collateral Agent shall enter into such waivers, amendments or modifications of
this Agreement as it may be directed (subject to the immediately preceding
sentence) to enter into by the Trustee; provided that the Collateral
Agent shall not be obligated to execute any such waiver, amendment or
modification that adversely affects the rights, duties, liabilities or
immunities of the Collateral Agent.


 


SECTION 6.03. Collateral Agent’s Fees and Expenses; Indemnification.
(a)  Each Grantor jointly and severally
agrees to pay all reasonable out-of-pocket expenses incurred by the Collateral
Agent, including the reasonable fees, charges and disbursements of its counsel,
in connection with (i) the preparation, execution, delivery and administration
of this Agreement and any other Security Document, (ii) the custody or
preservation of, or the sale of, collection from or other realization upon any
of the Collateral, (iii) the exercise, enforcement or protection of any of the
rights of the Collateral Agent hereunder or under any other Security Document
or (iv) the failure of any Grantor to perform or observe any of the provisions
hereof.


 


(b)  Without limitation of its
indemnification obligations under the other Notes Documents, each Grantor
jointly and severally agrees to indemnify the Collateral Agent, its Affiliates
and their respective officers, directors, employees, agents and representatives
(the “Indemnitees”) against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of, the execution, 


 


27

















 


delivery or performance of this Agreement or
any claim, litigation, investigation or proceeding relating to any of the
foregoing, or any agreement or instrument contemplated hereby, or to the Collateral,
whether or not any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee or
any of its Affiliates.


 


(c)  Any such amounts payable as
provided hereunder shall be additional Notes Obligations secured hereby and by
the other Security Documents. The provisions of this Section shall remain
operative and in full force and effect regardless of the termination of this
Agreement or any other Notes Document, the consummation of the transactions
contemplated hereby, the repayment of any of the Notes Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or
any other Notes Document, or any investigation made by or on behalf of the
Collateral Agent or any other Secured Party. All amounts due under this Section
shall be payable on written demand therefor.


 


SECTION 6.04. Successors and Assigns. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Grantor or the Collateral Agent
that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and assigns.


 


SECTION 6.05. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Grantors in this Agreement and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon by
the Secured Parties and shall survive the execution and delivery of this
Agreement, the other Notes Documents and the issuance of the Securities,
regardless of any investigation made by any Secured Party or on its behalf, and
shall continue in full force and effect until this Agreement shall terminate.


 


SECTION 6.06. Counterparts; Effectiveness; Several Agreement. This
Agreement may be executed in counterparts, each of which shall constitute an
original but all of which when taken together shall constitute a single
contract. Delivery of an executed signature page to this Agreement by facsimile
or electronic transmission shall be as effective as delivery of a manually
signed counterpart of this Agreement. This Agreement shall become effective as
to any Grantor when a counterpart hereof executed on behalf of such Grantor
shall have been delivered to the Collateral Agent and a counterpart hereof
shall have been executed on behalf of the Collateral Agent, and thereafter
shall be binding upon such Grantor and the Collateral Agent and their
respective permitted successors and assigns, and shall inure to the benefit of
such Grantor, the Collateral Agent and the other Secured Parties and their
respective successors and assigns, except that no Grantor shall have the right
to assign or transfer its rights or obligations hereunder or any interest
herein or in the Collateral (and any such 


 


28

















 


assignment or transfer shall be void) except
as expressly provided in this Agreement or the Indenture. This Agreement shall
be construed as a separate agreement with respect to each Grantor and may be
amended, modified, supplemented, waived or released with respect to any Grantor
without the approval of any other Grantor and without affecting the obligations
of any other Grantor hereunder.


 


SECTION 6.07. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction. The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.


 


SECTION 6.08. Governing Law; Jurisdiction; Consent to Service of
Process. (a)  This Agreement shall be
construed in accordance with and governed by the law of the State of New York.


 


(b)  Each of the Grantors hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any other Notes Document, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or
any other Notes Document shall affect any right that the Collateral Agent or
any other Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement or any other Notes Document against any Grantor, or
its properties in the courts of any jurisdiction.


 


(c)  Each of the Grantors hereby
irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or any other Notes Document in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.


 


(d)  Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices
in Section 6.01. Nothing in this Agreement or 


 


29

















 


any other Notes Document will affect the right
of any party to this Agreement to serve process in any other manner permitted
by law.


 


SECTION 6.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER NOTES DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


SECTION 6.10. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not part
of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.


 


SECTION 6.11. Security Interest Absolute. All rights of the
Collateral Agent hereunder, the Security Interest, the grant of a security
interest in the Pledged Collateral and all obligations of each Grantor
hereunder shall be absolute and unconditional irrespective of (a) any lack
of validity or enforceability of the Indenture, any other Notes Document, any
agreement with respect to any of the Notes Obligations or any other agreement
or instrument relating to any of the foregoing, (b) any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Notes Obligations, or any other amendment or waiver of or any consent to any
departure from the Indenture, any other Notes Document or any other agreement
or instrument, (c) any exchange, release or non-perfection of any Lien on
other collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the Notes
Obligations, or (d) any other circumstance that might otherwise constitute
a defense available to, or a discharge of, any Grantor in respect of the Notes
Obligations or this Agreement.


 


SECTION 6.12. Termination or Release. (a)  This Agreement, the Security Interest and all
other security interests granted hereby shall terminate when all the Notes
Obligations (other than contingent obligations) have been indefeasibly paid in
full pursuant to the terms of the Indenture, and the Trustee shall have
informed the Collateral Agent thereof in writing.


 


(b)  Except as provided in
paragraph (a) of this Section, releases of any Grantors from their
obligations hereunder, and releases of Collateral from the Liens created
hereby, shall be governed by the Indenture, including Section 11.03
thereof.


 


30

















 


(c)  In connection with any such
termination or release pursuant to this Section, the Collateral Agent shall
execute and deliver to any Grantor, at such Grantor’s expense, all documents
that such Grantor shall reasonably request to evidence such termination or
release; provided, however, that the Collateral Agent shall not,
and shall not be required to, execute or deliver any such documents unless it
shall have been directed to do so by the Trustee. Any execution and delivery of
documents pursuant to this Section shall be without recourse to or warranty by
the Collateral Agent.


 


SECTION 6.13. Additional Grantors. If, pursuant to the
Indenture, Symmetry and the Restricted Subsidiaries are required to cause any
Subsidiary of Symmetry to become a party to this Agreement, upon the execution
and delivery by the Collateral Agent and such Subsidiary of an instrument in
the form of Exhibit I hereto, such Subsidiary Party shall become a Grantor
hereunder with the same force and effect as if originally named as such herein.
The execution and delivery of any such instrument shall not require the consent
of any other Grantor hereunder. The rights and obligations of each Grantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Grantor as a party to this Agreement.


 


SECTION 6.14. Collateral Agent Appointed Attorney-in-Fact. Each
Grantor hereby appoints the Collateral Agent the attorney-in-fact of such
Grantor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest. Without limiting the
generality of the foregoing, the Collateral Agent shall have the right, upon
the occurrence and during the continuance of an Event of Default, with full
power of substitution either in the Collateral Agent’s name or in the name of
such Grantor (a) to receive, endorse, assign or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment
relating to the Collateral or any part thereof; (b) to demand, collect,
receive payment of, give receipt for and give discharges and releases of all or
any of the Collateral; (c) to sign the name of any Grantor on any invoice
or bill of lading relating to any of the Collateral; (d) to send
verifications of Accounts Receivable to any Account Debtor; (e) to
commence and prosecute any and all suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize
on all or any of the Collateral or to enforce any rights in respect of any
Collateral; (f) to settle, compromise, compound, adjust or defend any
actions, suits or proceedings relating to all or any of the Collateral;
(g) to notify, or to require any Grantor to notify, Account Debtors to
make payment directly to the Collateral Agent; and (h) to use, sell,
assign, transfer, pledge, make any agreement with respect to or otherwise deal
with all or any of the Collateral, and to do all other acts and things necessary
to carry out the purposes of this Agreement, as fully and completely as though
the Collateral Agent were the absolute owner of the Collateral for all
purposes; provided that nothing herein contained shall be construed as
requiring or obligating the Collateral Agent to make any commitment or to make
any inquiry as to the nature or sufficiency of any payment received by the
Collateral Agent, or to present or file any claim or notice, or to take any
action with respect to the Collateral or any part thereof or the moneys due or
to become due in respect thereof or any property covered thereby. The
Collateral Agent and the other Secured Parties shall be accountable only for
amounts actually received as a 


 


31

















 


result of the exercise of the powers granted
to them herein, and neither they nor their officers, directors, employees or
agents shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or wilful misconduct.


 


SECTION 6.15. Intercreditor Agreement. Notwithstanding anything
herein to the contrary, the Liens granted to the Collateral Agent under this
Agreement and the exercise of the rights and remedies of the Collateral Agent
hereunder are subject to the provisions of the Intercreditor Agreement. In the
event of any conflict between the terms of the Intercreditor Agreement and this
Agreement, the terms of the Intercreditor Agreement shall govern and control. At
any time prior to the Discharge of Revolving Credit Obligations (as defined in
the Intercreditor Agreement), no Grantor shall be required to take or refrain
from taking any action at the request of the Collateral Agent with respect to
any ABL Collateral if such action or inaction would be inconsistent with (a) any
action or inaction affirmatively requested by the Credit Agent in accordance
with the Credit Agreement or (b) any action or inaction affirmatively
required by any of the provisions of the Credit Agreement.


 


ARTICLE VII



Concerning the Collateral Agent


 


SECTION 7.01. Confirmation of Appointment. (a) Each of the
Secured Parties hereby confirms its appointment of The Bank of New York to act,
and The Bank of New York hereby agrees to act, as the Collateral Agent for the
Secured Parties pursuant to the terms of this Agreement and the other Security
Documents, and authorizes the Collateral Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Collateral Agent by
the terms of this Agreement and the other Security Documents, together with
such actions and powers as are reasonably incidental thereto. Without limiting
the generality of the foregoing, the Collateral Agent is hereby expressly
authorized to execute any and all documents (including releases) with respect
to the Collateral, and the rights of the Secured Parties with respect thereto,
as contemplated by and in accordance with the provisions of this Agreement and
the other Security Documents.


 


SECTION 7.02. Duties or Obligations. The Collateral Agent shall
not have any duties or obligations except those expressly set forth in the Loan
Documents. Without limiting the generality of the foregoing, (i) the
Collateral Agent shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing and
(ii) the Collateral Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Notes Documents that the Collateral
Agent is required to exercise in writing by the Trustee (or by the Holders of
at least 25% in aggregate principal amount of the Securities). The Collateral
Agent shall take such actions and exercise such remedies hereunder and under
the other Notes Documents as it is from time to time directed, in writing, to
take or exercise by the Trustee, provided that the Collateral Agent
shall not be obligated to take any such action that adversely affects the
rights, duties, liabilities or immunities of the Collateral Agent. The
Collateral Agent 


 


32

















 


shall be entitled to rely conclusively,
without any independent investigation whatsoever, and shall be fully protected
in so relying, on any direction, instruction or consent of the Trustee, if such
direction, instruction or consent is purported to be given on behalf of the
Trustee. The Collateral Agent shall not be liable for any action taken or not
taken by it with the consent or at the request of the Trustee (or the Holders
of at least 25% in aggregate principal amount of the Securities) or in the
absence of its own gross negligence or wilful misconduct. In no event shall the
Collateral Agent be liable, directly or indirectly, for any special, indirect
or consequential damages, even if the Collateral Agent has been advised of the
possibility of such damages.


 


SECTION 7.03. Reliance; Sub-Agents. (a)  The Collateral Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
person. The Collateral Agent may also rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper person, and
shall not incur any liability for relying thereon. The Collateral Agent may
consult with legal counsel (who may be counsel for Symmetry), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


 


(b)  The Collateral Agent may
perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by the Collateral Agent. The Collateral
Agent and any such sub-agent may perform any and all its duties and exercise
its rights and powers through their officers, directors, employees, agents and
representatives. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the officers, directors, employees, agents
and representatives of the Collateral Agent and any such sub-agent.


 


SECTION 7.04. Resignation of the Collateral Agent. Subject to
the appointment and acceptance of a successor Collateral Agent as provided in
this paragraph, the Collateral Agent may resign at any time by notifying
Symmetry and the Trustee. Upon any such resignation, the Trustee or the Holders
of at least 25% in aggregate principal amount of the Securities shall have the
right to appoint a successor. If no successor shall have been so appointed by
the Trustee or such Holders and shall have accepted such appointment within
60 days after the retiring Collateral Agent gives notice of its
resignation, then the retiring Collateral Agent may, at the expense of the
Grantors, petition a court of competent jurisdiction to appoint a successor
Collateral Agent, which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as the
Collateral Agent by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent, and the retiring Collateral Agent shall be discharged from
its duties and obligations hereunder and under the other Notes Documents. Such
appointment and designation shall be full evidence of the right and authority
of such successor Collateral Agent to act as Collateral Agent hereunder and
under the other Notes Documents, and all Collateral, power, trusts, duties,
documents, rights and authority of the retiring Collateral Agent shall rest in
the successor Collateral 


 


33

















 


Agent, without any further deed or conveyance.
The retiring Collateral Agent shall, upon request of the Trustee or the
successor Collateral Agent, execute and deliver any other such instrument
transferring to the successor Collateral Agent all the Collateral, properties,
rights, power, trust, duties, authority and title of such retiring Collateral
Agent without any representations or warranties from the retiring Collateral
Agent to the successor Collateral Agent or the Secured Parties. The Grantors
shall execute and deliver any and all documents, conveyances or instruments
requested by the Trustee, the retiring Collateral Agent or the successor
Collateral Agent to reflect such transfer to the successor Collateral Agent. After
the Collateral Agent’s resignation hereunder, the provisions of this Article
and Section 6.03 shall continue in effect for the benefit of such retiring
Collateral Agent, its Affiliates and their related Indemnitees in respect of
any actions taken or omitted to be taken by any of them while acting as the
Collateral Agent.


 


34

















 


IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.


 


	
   

  	
  NOVAMERICAN STEEL FINCO INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Corrado De Gasperis

  
	
   

  	
   

  	
  Name: Corrado
  De Gasperis

  
	
   

  	
   

  	
  Title: President
  and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SYMMETRY HOLDINGS INC.,

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Corrado De Gasperis

  
	
   

  	
   

  	
  Name: Corrado
  De Gasperis

  
	
   

  	
   

  	
  Title: Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NOVAMERICAN STEEL HOLDINGS 

  INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Corrado De Gasperis

  
	
   

  	
   

  	
  Name: Corrado
  De Gasperis

  
	
   

  	
   

  	
  Title: President
  and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INTEGRATED STEEL INDUSTRIES, 

  INC.,

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Corrado De Gasperis

  
	
   

  	
   

  	
  Name: Corrado
  De Gasperis

  
	
   

  	
   

  	
  Title: President
  and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMERICAN STEEL AND ALUMINUM 

  CORPORATION,

  
	
   

  	
  By

  	
  /s/ Corrado De Gasperis

  
	
   

  	
   

  	
  Name: Corrado
  De Gasperis

  
	
   

  	
   

  	
  Title: President
  and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NOVA TUBE AND STEEL, INC.,

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Corrado De Gasperis

  
	
   

  	
   

  	
  Name: Corrado
  De Gasperis

  
	
   

  	
   

  	
  Title: President
  and Treasurer

  



 


35

















 


	
   

  	
  NOVAMERICAN TUBE HOLDINGS,

  INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Corrado De Gasperis

  
	
   

  	
   

  	
  Name: Corrado
  De Gasperis

  
	
   

  	
   

  	
  Title: President
  and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NOVA TUBE INDIANA, LLC,

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Corrado De Gasperis

  
	
   

  	
   

  	
  Name: Corrado
  De Gasperis

  
	
   

  	
   

  	
  Title: President
  and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK, AS

  COLLATERAL AGENT,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Remo J. Reale

  
	
   

  	
   

  	
  Name: Remo J. Reale

  
	
   

  	
   

  	
  Title: Vice President

  



 


36

















 


Schedule I to the

Collateral Agreement


 


SUBSIDIARY PARTIES


 


1.             Novamerican
Steel Holdings Inc.


 


2.             Integrated
Steel Industries, Inc.


 


3.             American
Steel and Aluminum Corporation


 


4.             Nova
Tube and Steel, Inc.


 


5.             Novamerican
Tube Holdings, Inc.


 


6.             Nova
Tube Indiana, LLC


 

















 


Schedule II to the Collateral Agreement


 


PLEDGED CAPITAL STOCK


 


	
  Registered

  Owner/ Pledgor

  (Jurisdiction of Organization)

  	
   

  	
  Issuer

  (Jurisdiction of Organization)

  	
   

  	
  Certificate

  Number (Date)

  	
   

  	
  Number
  and

  Class of

  Equity Interest

  	
   

  	
  Percentage

  Equity Interests

  Pledged

  
	
  Symmetry
  Holdings Inc. (Delaware)

  	
   

  	
  Novamerican
  Steel Holdings Inc. (Delaware)

  	
   

  	
  1 (as of June 20, 2007)

  	
   

  	
  1 share of Common Stock

  	
   

  	
  100%

  
	
  Novamerican
  Steel Holdings Inc. (Delaware)

  	
   

  	
  Novamerican
  Steel Finco Inc. (Delaware)

  	
   

  	
  1 (as of June 20, 2007)

  	
   

  	
  1 share of Common Stock

  	
   

  	
  100%

  
	
  Novamerican
  Steel Finco Inc. (Delaware)

  	
   

  	
  Novamerican
  Steel Inc. (Canada)

  	
   

  	
  C-1 (November 15, 2007)

  	
   

  	
  661  shares of Common
  Stock

  	
   

  	
  66%

  
	
  Novamerican
  Steel Finco Inc. (Delaware)

  	
   

  	
  Integrated
  Steel Industries, Inc. (Delaware)

  	
   

  	
  3 (November 15, 2007)

  	
   

  	
  1,000 shares of Common Stock

  	
   

  	
  100%

  
	
  Integrated
  Steel Industries, Inc. (Delaware)

  	
   

  	
  American
  Steel and Aluminum Corporation (Massachusetts)

  	
   

  	
  4 (dated 2001)

  	
   

  	
  4,276 shares of

  Common Stock

  	
   

  	
  100%

  
	
  Integrated
  Steel Industries, Inc. (Delaware)

  	
   

  	
  Nova
  Tube and Steel, Inc. (Delaware) (formerly was Novatlantic Steel and Tube)

  	
   

  	
  2 (dated January 23, 2001)

  	
   

  	
  100 shares of Common Stock

  	
   

  	
  100%

  
	
  Integrated
  Steel Industries, Inc. (Delaware)

  	
   

  	
  Novamerican
  Tube Holdings, Inc. (Delaware)

  	
   

  	
  1 (dated January 21, 2001)

  	
   

  	
  1,000 shares of Common Stock

  	
   

  	
  100%

  
	
  Novamerican
  Tube Holdings, Inc. (Delaware)

  	
   

  	
  Nova
  Tube Indiana, LLC (Delaware)

  	
   

  	
  N/A

  	
   

  	
  100  LLC Membership
  Interests (will be certificated post closing)

  	
   

  	
  100%

  



 


PLEDGED DEBT SECURITIES


 


	
  Pledgor

  (Jurisdiction of Organization)

  	
   

  	
  Issuer

  (Jurisdiction of Organization)

  	
   

  	
  Principal Amount

  	
   

  	
  Date of Note

  	
   

  	
  Maturity Date

  
	
  Novamerican Steel Finco
  Inc. (Delaware)

  	
   

  	
  Novamerican Steel Inc.
  (Canada)

  	
   

  	
  US$7,800,000

  	
   

  	
  November 15, 2007

  	
   

  	
  On Demand

  
	
  Novamerican Steel Finco
  Inc. (Delaware)

  	
   

  	
  Novamerican Steel Inc.
  (Canada)

  	
   

  	
  US$117,200,000



  	
   

  	
  November 15, 2007

  	
   

  	
  On Demand

  
	
  Symmetry Holdings Inc.
  (Delaware); Novamerican Steel Holdings Inc. (Delaware); Novamerican Steel
  Finco Inc. (Delaware); Integrated Steel Industries, Inc. (Delaware); American
  Steel and Aluminum Corporation (Massachusetts); Novamerican Tube Holdings,
  Inc. (Delaware); Nova Tube and Steel, Inc. (Delaware); and Nova Tube Indiana,
  LLC (Delaware)

  	
   

  	
  Symmetry Holdings Inc.
  (Delaware); Novamerican Steel Holdings Inc. (Delaware); Novamerican Steel
  Finco Inc. (Delaware); Integrated Steel Industries, Inc. (Delaware); American
  Steel and Aluminum Corporation (Massachusetts); Novamerican Tube Holdings,
  Inc. (Delaware); Nova Tube and Steel, Inc. (Delaware); and Nova Tube Indiana,
  LLC (Delaware); Novamerican Steel Inc. (Canada); and 632422 N.B. Ltd.
  (Canada)

  	
   

  	
  N/A (represents Global
  Intercompany Note)

  	
   

  	
  November 15, 2007

  	
   

  	
  On Demand

  



 

















 


Schedule III to the Collateral Agreement


 


INTELLECTUAL PROPERTY


 


None.


 

















 


Schedule IV to the


Collateral Agreement


 


COMMERCIAL TORT CLAIMS


 


None.


 

















 


Schedule I to the


Collateral Agreement


 


SUPPLEMENT NO.      dated
as of
[                      ]
(this “Supplement”), to the Collateral Agreement dated as of November
15, 2007 (the “Collateral Agreement”), among SYMMETRY HOLDINGS INC. (“Symmetry”),
NOVAMERICAN STEEL FINCO INC. (the “Company”), the other Subsidiaries of
Symmetry identified therein and THE BANK OF NEW YORK, as collateral agent (in
such capacity, the “Collateral Agent”).


 


A. Reference is made to (a) the Indenture dated as of November 15, 2007
(as amended, supplemented or otherwise modified from time to time, the “Indenture”),
among Symmetry, the Company, the Subsidiary Guarantors (such term and each
other capitalized term used but not defined herein having the meaning assigned
to such term in the Collateral Agreement) identified therein and The Bank of
New York, as trustee (in such capacity, the “Trustee”), and (b) the
Purchase Agreement dated as of November 15, 2007 (as supplemented by the
Joinder Agreement dated November 15, 2007, the “Purchase Agreement”),
among Symmetry, the Company, the Subsidiary Guarantors identified therein and
J.P. Morgan Securities Inc. and CIBC World Markets Corp., as initial purchasers
(the “Initial Purchasers”).


 


B. The Grantors have entered into the Collateral Agreement in order to
induce the Initial Purchasers to purchase the Initial Securities. Section 6.13
of the Collateral Agreement provides that additional Subsidiaries of Symmetry
may become “Grantors” under the Collateral Agreement by execution and delivery
of an instrument in the form of this Supplement. The undersigned Subsidiary of
Symmetry (the “New Subsidiary”) is executing this Supplement in
accordance with the requirements of the Indenture to become a “Grantor” under
the Collateral Agreement.


 


Accordingly, the Collateral Agent and the New Subsidiary agree as
follows:


 


SECTION 1. In accordance with Section 6.13 of the Collateral
Agreement, the New Subsidiary by its signature below becomes a Subsidiary Party
(and accordingly, becomes a “Grantor” under the Collateral Agreement with the
same force and effect as if originally named therein as such, and the New
Subsidiary hereby (a) agrees to all the terms and provisions of the
Collateral Agreement applicable to it in such capacities thereunder and (b) represents
and warrants to the Collateral Agent, on behalf of the Secured Parties, that
the representations and warranties made by it as a Grantor under the Collateral
Agreement are true and correct on and as of the date hereof. In furtherance of
the foregoing, the New Subsidiary, as security for the payment and performance
in full of the Notes Obligations pursuant to the terms of the Collateral
Agreement, does hereby create and grant to the Collateral Agent, its successors
and assigns, for the benefit of the applicable Secured Parties, their
successors and assigns, a security interest in and lien on all of the New
Subsidiary’s right, title and interest in and to the Pledged Collateral and
Article 9 Collateral of the New Subsidiary. Each reference to a “Grantor” in
the Collateral Agreement shall be deemed to include the New Subsidiary. The
Collateral Agreement is hereby incorporated herein by reference.


 

















 


SECTION 2. The New Subsidiary represents and warrants to the Collateral
Agent, on behalf of the Secured Parties, that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.


 


SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received a counterpart of this Supplement that
bears the signature of the New Subsidiary and the Collateral Agent has executed
a counterpart hereof. Delivery of an executed signature page to this Supplement
by facsimile or electronic transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.


 


SECTION 4. The New Subsidiary hereby represents and warrants to the
Collateral Agent, on behalf of the Secured Parties, that (a) set forth on
Schedule I attached hereto is a true and correct schedule of the location
of any and all Collateral of the New Subsidiary, (b) set forth on
Schedule II attached hereto is a true and correct schedule, as of the date
hereof, of (i) all the Capital Stock owned by the New Subsidiary, setting forth
the percentage of the issued and outstanding units of each class of the Capital
Stock of the issuer thereof so owned by the New Subsidiary and the number of
each certificate representing the same, and (ii) all debt securities owned by
the New Subsidiary, setting forth all promissory notes and other instruments
evidencing the same, (c) set forth on Schedule III attached hereto is
a true and correct schedule, as of the date hereof, of all Intellectual
Property of the New Subsidiary that would have been required to be set forth on
Schedule III to the Collateral Agreement, (d) set forth on Schedule IV
attached hereto is a true and correct schedule, as of the date hereof, of all
Commercial Tort Claims in respect of which a complaint or a counterclaim has
been filed by the New Subsidiary seeking damages in an amount of US$1,000,000
or more and (e) set forth under its signature hereto, is the true and
correct legal name of the New Subsidiary, its jurisdiction of formation and the
location of its chief executive office.


 


SECTION 5. Except as expressly supplemented hereby, the Collateral
Agreement shall remain in full force and effect.


 


SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Collateral Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


 

















 


SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 6.01 of the Collateral Agreement.


 


SECTION 9. The New Subsidiary agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.


 


IN WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have
duly executed this Supplement to the Collateral Agreement as of the day and
year first above written.


 


	
   

  	
  [NAME OF NEW SUBSIDIARY],

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Legal Name:

  
	
   

  	
   

  	
  Jurisdiction of Formation:

  
	
   

  	
   

  	
  Location of Chief Executive Office:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK, 

  AS COLLATERAL AGENT

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: